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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


LW 


I 


MRS.  MARGARET  L.V.SHEPARD. 

ACCESSION 


A   SELECTION 


OF 


AMERICAN   AND  ENGLISH  CASES 


ON  THE 


MEASURE  OE   DAMAGES. 

ARRANGED    BY   SUBJECTS. 
WITH    NOTES. 

By    HENRY    DWIGHT    SEDGWICK. 

Res  judicata  pro  veritate  accipitur. 


"To  the  Reader  my  advice  is  that  in  reading  these  Reports,  he  neglect  not  in  any  case  the 
reading  of  the  Old  Books  of  years  reported  in  former  ages,  for  assuredly  out  of  the  old  fields 
must  spring  and  grow  the  new  corn." — Lord  Coke. 


NEW    YORK: 
BAKER,  VOORHIS  &  CO.,   PUBLISHERS, 

6G   NASSAU   STREET. 
1878. 


res.",  in  the  year  eighteen  hundred  and  seventy-eight,  by 
BAKER,  YOOIUIIS  &  CO., 
In  the  Oilice  of  the  Librarian  of  Congress,  at  Washington. 


riiKKH     I 


PREFAC  E. 


The  value,  as  well  to  the  professional  student  as  to  the  prac- 
tising lawyer,  of  a  selection  of  cases  to  illustrate  the  law,  and 
especially  particular  topics  of  the  law,  is  too  well  recognized  at  the 
present  day  to  make  any  apology  necessary  for  the  present  one. 
The  numerous  similar  publications,  and  the  favor  they  have  found 
with  the  professional  public,  amply  justify  the  present  editor  and 
his  publishers.  Rules  of  damages  are  peculiarly  fitted  to  be  taught 
by  illustration  in  this  way ;  and  whatever  fault  may  be  found  with 
the  present  volume,  should  apply  to  the  execution  of  the  proposed 
plan,  and  not  to  the  plan  itself. 

But  the  difficulty,  especially  as  relates  to  American  cast-,  of 
selecting  in  any  branch  of  jurisprudence,  such  decisions  W-  may 
fairly  be  called  leading,  a  difficulty  which  has  been  felt  by  others 
engaged  in  a  similar  task,  is  applicable  to  the  subject  of  this  book, 
more  perhaps  than  to  most  other  legal  topics.  Wnile  new  appli- 
cations of  the  principles  out  of  which  the  rules  of  damages  grow 
are  continually  to  be  found  in  cases  both  of  contract  and  tort 
where  compensation  is  sought,  there  are  comparatively  few  in 
which  the  mere  measurement  of  that  compensation  is  the  main 
subject  of  the  controversy,  or  lias  called  out  extended  judicial 
discussion. 

This  book,  therefore,  does  not  profess  to  be,  in  any  strict 
a  collection  of  the   "leading  cases"  on   the   measure  of  dan 
although  it  is  believed  to  contain  most,  if  not  all, 'of  the  decisions 
which  would  properly  be  found    in  a  collection  having  that  title. 
Perhaps  a  volume  might   be  compiled  of   other  cases  illustrating 


^ 


^ 


1 V  PREFACE. 

the  same  subject,  of  equal  interest  with  this.  But  great  pains 
have  been  taken  to  make  this  selection  useful,  by  exhibiting  the 
rules  by  which  damages  are  measured  in  connection  with  all  the 
principal  classes  of  controversy  involved  in  actions  at  law. 

By  omitting  the  portions  of  the  reports  which  do  not  relate  to 
the  subject  in  view,  it  lias  been  practicable  to  give  within  a  com- 
paratively moderate  compass  a  great  variety  of  cases  on  that  sub- 
ject. At  the  same  time,  it  is  believed  that  nothing  in  any  case 
has  been  omitted  necessary  to  a  complete  understanding  of  the 
judgment  of  the  court,  so  far  as  it  relates  to  the  questions  of 
damages. 

Perhaps  it  may  be  thought  that  undue  space  is  allotted  to  con- 
tracts relating  to  real  estate,  and  to  the  law  of  carriers.  These 
important  topics  were  the  first  ones  considered ;  and  although  they 
take  less  space  than  was  originally  marked  out  for  them,  yet  had 
the  proportionate  number  of  pages  they  occupy  been  more  exactly 
foreseen,  they  would  have  been  somewhat  further  curtailed.  In 
view,  however,  of  the  extent  of  these  subjects,  and  of  the  perti- 
nency of  the  cases  selected  to  the  illustration  of  the  rules  of 
damages  in  other  branches  of  the  law,  we  hope  this  objection  will 
not  be  found  serious. 

Another  criticism  may  perhaps  be  suggested  to  the  Western 
practitioner,  by  the  fact  that  the  larger  portion  of  the  reports  are 
taken  from  the  Eastern  States  and  Great  Britain.  But  this  was 
almost  inevitably  the  case  in  a  first  selection,  in  which  the  more 
general  principles  of  the  law  had  to  be  illustrated.  These  were 
developed  and  determined  in  the  older  civilizations  and  the  earlier 
courts.  Should  another  selection  be  called  for,  it  will  be  doubt- 
less drawn,  to  a  large  extent,  from  that  great  "West,  where — in  the 
law  as  in  so  much  else  that  tasks  the  brain — man  is  making  the 
greatest  relative  progress. 

The  compiler  has  endeavored  to  classify  the  cases  relating  to 
the  same  branches  of  the  law.  But  as  the  same  rules  may  some- 
times be  applied  in  cases  growing  out  of  causes  of  action  of  the 
most  diverse  kinds,  it  was  not  necessary,  nor  would  it  be  practicable 
to  bring  under  one  head  all  the  illustrations  of  the  same  rule,  or 


PREFACE.  V 

classify  them  otherwise  than  by  the  general  nature  of  the  cases  by 
which  they  are  illustrated. 

Occasional  notes  have  been  subjoined  which,  perhaps,  may  be 
found  useful.  Many  of  them  contain  the  statement  of  decisions 
which,  for  want  of  space,  could  not  be  reported  at  length. 

New  York,  September  20,  1878. 


TABLE   OF   CONTENTS. 


REAL    ESTATE. 

DAMAGES  FOR  BREACH  OF  CONTRACTS  TO  CONVEY  REAL  ESTATE 
OR  INTERESTS  THEREIN;  FOR  BREACH  OF  COVENANTS  IN 
DEEDS,  AND  IN  ACTIONS  OF  EJECTMENT. 

Goodtitle  v.  Tombs 1 

Flureau  v.  Thornhill 3 

Staats  v.  Ten  Eyck's  Exrs 4 

Prescott  v.  Trueman 11 

Pitcher  v.  Livingston 1-4 

RIGHTS  OF  PARTIES  FIXED  AT  COMMENCEMENT  OF  ACTION; 
FAILURE  OF  TITLE  TO  AN  UNDIVIDED  PART  OF  A  SPECIFIED 
TRACT  ;   PROPORTIONATE  RECOVERY. 

Morris  v.  Phelps 28 

REFUSAL  OF  VENDEE  TO  RECEIVE  DEED. 

Old  Colony  R.  R.  Corp.  v.  Evans 34 

EXTENT  OF  RECOVERY  FOR  BREACH  OF  COVENANT  AGATNST 
INCUMBRANCES. 

Greene  v.  Tallman 3) 

EXECUTORY  CONTRACT  OF  SALE;  DAMAGES  AGAINST  VENDOR; 
WASTE. 

Worral  v.  Munn 40 

CONTRACT  FOR  SALE  OF  REAL  ESTATE;  BREACH  OF;  DAMAGES 
FOR. 

Bain  v.  Fothergill 45 

Plummer  v.  Rigdon 87 

BREACH  OF  COVENANT  TO  DISCHARGE  INCUMBRANCE  BY  A  CER- 
TAIN  DAY. 

Somers  v.  Wright 90 

BREACH  OF  COVENANT  OF  SEIZLN  AND  RIGHT  TO  CONVEY  WHERE 
THE  CONSIDERATION  IS  SOMETHING  OTHER   THAN  MONEY. 

Hodges  v.  Thayer 97 


viii  TABLE  OF  CONTENTS. 

CARRIERS. 

DAMAGES  FOR  BREACH  OF  CONTRACT. 

Brackel   v.  M'Nair 99 

a.<  I  BPTANCE  OF  GOODS  BT  OWNER;   MITIGATION. 

Bowman  v.  Teal] 101 

NEGLIGENT  LOSS  BY  CARRIER;    MARKET  VALUE. 

Smith  v.  Griffith 104 

FREIGHT;  ASSORTED  CARGO;  CONSTRUCTION  OF  CHARTER  PARTY. 
Cockburn   v.  Alexander Ill 

REFUSAL  TO  TRANSPORT;  RISE  IN  MARKET  VALUE;  GOODS  TO 
BE  TRANSPORTED. 

Ogden  v.  Marshall 123 

CARRIER'S  DELAY;   ANTICIPATED  PROFITS. 

1 1  aril' y  v.  Baxendale 126 

CARRIER'S  DELAY;   PROFITS. 

Gee  v.  Lancashire  &  Yorkshire  Railway 138 

CARRIER;  VALUE  OF  CHANCE  FOR  PRIZE  TO  BE  CONTENDED 
FOR  FURNISHES  THE  MEASURE  OF  DAMAGES  FOR  THE 
LOSS  OF  THE  PLAN,  OR  OTHER  PRODUCTION  OFFERED  FOR 
COMPETITION. 

Adams'  Express  Co.  v.  Egbert 145 

NEGLECT  BY  CARRIER  OF  PASSENGERS  ;  PROPER  ITEMS  OF 
DAMAGE. 

Williams  v.  Vanderbilt 152 

CARRIER  OF  PASSENGERS;  RAILWAY  COMPANY;  BREACH  OF  CON- 
TRA CT  OF  CARRIAGE  ;  PERSONAL  INCONVENIENCE  AS  A 
GROUND   OF  DAMAGE. 

Hobbs  v.  London  &  Southwestern  Ry.  Co 155 

DIRECT  LOSS;  INJURY  FROM  CARRIER'S  DELAY;  DUTY  OF  THE 
OTHER  PARTY.    V 

Hamilton  v.  McPherson 165 

NONDELIVERY;   LOSS  OF  PROFITS. 

British  Columbia  &  Vancouvers  Island  Spar,  Lumber,  &c. 

Co.  v.  Nettleslnp 170 


TABLE   OF   CONTENTS.  IX 

C  AERIEES— continued. 

CARRIER'S     NEGLECT    TO    TRANSPORT    WITHIN    A    REASONABLE 
TIME ;   FALL  IN  MARKET  OF  DELAYED  GOODS. 

Ward  v.  N.  Y.  Central  R.  R.  Co 177 

CARRIER    BY   SEA;    CARRIER'S  DUTY;    DEPRECIATION    IN    GOODS 
FROM  HIS  NEGLECT. 

Notara  v.  Henderson 182 

RAILWAY    COMPANY;    LIABILITY   FOR  WANT    OF    PUNCTUALITY; 
MEASURE  OF  DAMAGES;   SPECIAL  TRAIN. 

Le  Blanche  v.  London  &  Northwestern  Railway  Co 194 

CARRIER'S  BREACH  OF   CONTRACT;  NOTICE  OF  SPECIAL  CIRCUM- 
STANCES. 

Home  v.  Midland  Railway  Co 196 

REMOTE   DAMAGES;    PROXIMATE   CAUSE;    COSTS  OF  LITIGATION; 
SEPARATE  CONTRACTS. 

Baxendale  v.  London,  Chatham  &  Dover  Railway  Co. . . .   211 


CONTRACTS   FOR   SALE  AND  OTHER  AGREE- 
MENTS. 

CONTRACT  OF  SALE;  DAMAGES  FOR  NON-DELIVERY  OF  MER- 
CHANDISE ;   MARKET  VALUE. 

Dana  v.  Fiedler 220 

BREACH  OF  PAROL  CONTRACT  TO  CULTIVATE  FARM;  PROFITS; 
BAD  FAITH. 

Hoy  v.  Gronoble 220 

SPECIAL   CONTRACT;    REFUSAL   OF  VENDEE  TO  ACCEPT  GOODS. 

Gordon  v.  Norris 230 

CONTRACT  OF  SALE;  DAMAGES  NOT  ALLOWED  FOR  INJURIOUS 
CONSEQUENCES  WHICH  THE  PLAINTIFF  MIGHT  HAVE 
AVOIDED. 

Miller  v .  Mariner's  Church 236 

ACTION  FOR  PRICE   OF   STEAMBOAT;    RECOUPMENT;    PROFITS. 

Blanchard  v.   Ely 240 

SALE ;  DIRECT  PROFITS ;  PROFITS  OF  COLLATERAL  ENTERPRISES. 

Masterton  v.  Mayor  of  Brooklyn 247 


x  TABLE   OF  CONTEXTS. 

CONTRACTS  FOR  SALE,  &o.— continued. 

CONTRACT  TO   BUILD  AND   DELIVER   SHIP    BY  A   CERTAIN   DATE. 
Fletcher  v.  Tayleur 253 

CONTRACT  TO  REPAIR  THRESHING  MACHINE  IN  TIME  FOR  HAR- 
VEST;   REMOTE  AND  SPECIAL  DAMAGES. 

Portman  v.  Middleton 2G5 

CONTRACT  TO  DELIVER  AN  ENGINE  FOR  A  SPECIFIC  PURPOSE; 
GENERAL   RULE   OF  DAMAGES   FOR   BREACH  OF  CONTRACT. 

Griffin  v.  Colver 2G0 

BREACH  OF  CONTRACT  TO  DELIVER  ENGINE;   DIRECT  LOSS. 

Smeed  v.  Foord 275 

BREACH  OF  CONTRACT;  DAMAGES  FOR  INCONVENIENCE  TO  BUSI- 
NESS. 

Shepard  v.  Milwaukee  Gas-Light  Co 284 

CONTRACT  OF  SALE  UNDERSTOOD  BY  THE  VENDOR  TO  BE  IN- 
TENDED FOR  A  SPECIAL  PURPOSE  WHICH  WAS  NOT  THAT 
ACTUALLY  INTENDED  BY  THE  VENDEE. 

Cory  v.  Thames  Iron  "Works  Co 293 

CONTRACT  OF  SALE  MADE  WITH  REFERENCE  TO  A  RESALE  IN- 
TENDED BY  VENDEE;   PROFITS. 

Mossmore  v.  New  York  Shot  &  Lead  Co 302 

CONTRACT  OF  SALE;  LOSS  OF  PROFIT  ON  RESALE;  CONSEQUEN- 
TIAL DAMAGES;   SEVERAL  DELIVERERS. 

Borries  v.  Hutchinson 300 

MEASURE  OF  DAMAGES  FOR  NON-DELIVERY  OF  GOODS  UNDER 
CONTRACT  OF  SALE  ;  FORBEARANCE  OF  BUYER  AT  SELLER'S 
REQUEST;    STATUTE  OF  FRAUDS  (29  Car.  II,  c.  3,  §  17). 

Ogle  v.  Earl  Vane 310 


SEVERAL   DELIVERIES. 

CONTRACT  FOR  SALE  AND  DELIVERY  OF  COAL  IN  MONTHLY 
PORTIONS;  DELAY;  LOSS  FROM  INCREASE  OF  FREIGHT; 
WAIVER. 

Merrimack  Mfg.  Co.  v.  Quintard 325 

CONTRACT  FOR  ARTICLE  TO  BE  MANUFACTURED;  SEVERAL  DE- 
LIVERIES. 

Booth  v.  Spuyten  Duyvil  Rolling  Mill  Co 331 


TABLE   OF   CONTENTS.  xi 

SEVERAL  DELIVERIES— continued, 

CONTRACT    FOR    SEVERAL    DELIVERIES;     BREACH    BEFORE    TIME 
FOR   COMPLETE   PERFORMANCE. 

Roper  v.  Johnson ,  . .   336 

McHose  v.  Fulmer 347 

SEVERAL  DELTVERIES   OF   ARTICLES   TO   BE   MANUFACTURED. 

Elbintrer  Actien-Gesellschaft  v.  Armstrong 350 


ALTERNATIVE   CONTRACT. 

MEASURE  OF  DAMAGES;  CONTRACT  IN  THE  ALTERNATIVE;  JUDG- 
MENT BY  DEFAULT. 

Deverill  v .  Burnell 357 


CONTRACTS   FOR  WORK. 

CONTRACT  FOR  WORK  ACCORDING  TO  SPECIFICATION;  ABATE- 
MENT OF  PRICE  FOR  INSUFFICIENT  PERFORMANCE;  RE- 
COUPMENT;   SECOND  ACTION. 

Mondel  v.  Steel 363 

CONTRACT  ;  DEVIATION  BY  CONSENT  ;  ALTERATIONS  ;  RESCISSION. 
Clark  v.  Mayor  of  New  York 371 

EXECUTORY  CONTRACT;  PART  PERFORMANCE;  RECOUPMENT. 

Dermott  v.  Jones 375 

PLEADING;  BILL  OF  PARTICULARS:  IMPLIED  OBLIGATION  IN  CON- 
TRACT; INCOMPLETE  PERFORMANCE;  STOPPAGE  OF  WORK 
BY  DEFENDANT. 

Black  v.  Woodrow 377 


UNAUTHORIZED    CONTRACTS. 

CONTRACT  WITHOUT  AUTHORITY;  EXTENT  OF  DAMAGES  FOR 
BREACH  OF  IMPLLED  WARRANTY  OF  AUTHORITY;  COSTS  OF 
LITIGATION  UNDERTAKEN  IN  CONSEQUENCE  OF  THE  WAR- 
RANTY. 

Hughes  v.  Graeme 384 


XI 1  TABLE   OF  CONTENTS. 

PRINCIPAL   AND   AGENT. 

PRINCIPAL  AND  AGENT;  NEGLIGENCE;  MITIGATION. 

Allen  v.  Suydam 393 

FACTOR;    BREACH  OF  INSTRUCTION;    UNAUTHORIZED  SALE;  MITI- 
GATION. 

HM  v.  Bnicau 402 


MASTER  AND   SERVANT. 

MASTER  AND  SERVANT;  WRONGFUL  DISCHARGE;  CONSTRUCTIVE 
SERVICE ;  DAMAGES  BEYOND  WAGES  DUE  AT  TIME  OF  DIS- 
CHARGE. 

Moody  v.  Leverich -. 407 

MASTER  AND  SERVANT;  DUTY  OF  DISCHARGED  SERVANT;  OFFER 
OF  PERFORMANCE. 

Polk  v.  Daly 415 


PRINCIPAL   AND   SURETY. 

PRINCIPAL  AND  SURETY;   ABSOLUTE  COVENANT  TO  PAY. 

Loosemore    v.  Radford 420 

MARINE  INSURANCE. 

MARINE  INSURANCE;  PARTIAL  LOSS;   ITEMS  OF  LOSS. 

Lamar  Insurance  Co.  v.  McGlashen , 421 

LIQUIDATED   DAMAGES. 

LIQUIDATED  DAMAGES;  STIPULATION  TO  PAY  MONEY  IN  GROSS 
FOR  BREACH  OF  CONTRACT;   APPLICATION  OF  PAYMENTS. 

Tayloe  v.  Sandiford 427 

LIQUIDATED  DAMAGES;  STIPULATIONS  OF  VARIOUS  DEGREES  OF 
IMPORTANCE. 

Kemble  v.   Barren 432 

LIQUIDATED  DAMAGES;  STIPULATIONS  WHERE  DAMAGES  ARE  UN- 
CERTAIN; RELEASE  OF  PART  PERFORMANCE  OF  COVENANT; 
COVENANTS  NOT  COUPLED  WITH  CONDITION. 

Dakin  v.  Williams 435 


TABLE   OF  CONTEISTT^.  xiii 

LIQUIDATED   DAMAGES— continued. 

LIQUIDATED  DAMAGES;  DIVISIBLE  COVENANT. 

Price  v.  Green 441 

LIQUIDATED  DAMAGES;   UNCERTAIN  COVENANTS. 

Bagley  v.  Peddie  et  al 444 

PENALTY;   FORFEITURE;   VENDOR  AND  PURCHASER. 

In  re  Dagenham 450 

CONTRACTS   TO   PAY   MONEY. 

NOMINAL  DAMAGES  FOR  BREACH  OF  IMPLIED  CONTRACT  TO  PAY 
MONEY. 

Marzetti  v.  Williams 453, 

Rolin  v.  Steward 460 

CONSEQUENTIAL  DAMAGES  FOR  DISHONORING  MONEY  ORDER. 

Boyd  v.  Fitt 4(53 

BREACH  OF  CONTRACT  TO  HONOR  ACCEPTANCES. 

Prehn  v.  Royal  Bank  of  Liverpool 475 

NOTES   PAYABLE   IN   SPECIFIC   ARTICLES. 

MEASURE  OF  DAMAGES  WHERE  MEDIUM  OF  PAYMENT  IS  VALUED 
IN  THE  NOTE. 

Pinney  v.  Gleason 481 

VARIOUS    COVENANTS. 

COVENANT  TO  REPAIR;  COSTS  OF  FORMER  ACTION. 

Penley  v.  Watts 490 

BREACH  OF  CONTINUING  COVENANT  TO  REPAIR;  PRIOR  RECOVERY. 
Beach  v.  Crain 493 

BREACH  OF  COVENANT  NOT  TO  FORFEIT  LIFE  INSURANCE  POLICY. 
Hawkins  v.  Cuulthurst 49G 

BREACH  OF  CONTRACT  TO  PAY;   MEASURE  OF  DAMAGES. 

Wicker   v.  Iloppock 499 


xiv  TABLE   OF   CONTENTS. 

VARIOUS   COVENANTS— continued. 

BREACH  OF  COVENANT  TO  PAY  TAXES. 

Rector,  &c,  of  Trinity  Church  v.  Higgins 502 

FINAL  BREACH  OF  CONTINUING  COVENANT  TO  SUPPORT  ANOTHER ; 
PROSPECTIVE  EXPENSE;  COMPETENCY  OF  NORTHAMPTON 
TABLES  AS  EVIDENCE  OF  THE  PROBABLE  DURATION  OF  LIFE. 

Schell  v.  Plumb 507 

UNCONSCIONABLE  CONTRACTS. 

ALLOWANCE  OF  WHAT  IS  FAIRLY  DUE. 

Cutler  v.  How 511 

MARKET  VALUE. 

SALE;   FRAUD  OF  AGENT;  MARKET  VALUE,  HOW  SHOWN. 

Durst  v.   Burton 513 

SALE  OF  CHATTELS;  NON-DELIVERY;  ARTIFICIAL  MARKET  VALUE. 

Kountz  v.  Kirkpatrick 515 

INTEREST. 

ON  ACCOUNTS  STATED  AND  LIQUIDATED  SUMS. 

Blaney   v.  Hendricks 525 


WARRANTIES. 

PERSONAL  PROPERTY  BOUGHT  WITH  WARRANTY  AND  RE-SOLD 
WITH  WARRANTY;  COSTS  OF  DEFENDING  ACTION  FOR 
BREACH  OF  VENDEE'S  WARRANTY;  IMPROVIDENT  DEFENSE. 

Wrightup   v.   Chamberlain 520 

BREACH  OF  WARRANTY;   SPECIAL  DAMAGE. 

Clare   v.   Maynard 5*29 

BREACH  OF  WARRANTY;   CONSEQUENTIAL  DAMAGES. 

Passinger  v.  Thorburn 533 

SALE;  BREACH  OF  IMPLIED  WARRANTY;  EXTENT  OF  RECOVERY 
OF  PROFITS. 

Wolcott  v.  Mount 540 


TABLE   OF   CONTENTS.  XV 

WARRANTIES— continued. 

WARRANTY ;  SALE  OF  DISEASED  CATTLE;  VENDOR  KNOWING  VEN- 
DEE'S INTENTION  OF  PLACING  THEM  WITH  OTHER  CATTLE; 
CONSEQUENTIAL  DAMAGES. 

Knowles   v.  Nunn 545 

BREACH  OF  WARRANTY  ON  SALE  OF  STOCK. 

Woodward  v.  Powers 546 

FRAUDS. 

FRAUDULENT  REPRESENTATIONS;  PROXIMATE  DAMAGES;   COSTS. 
Richardson  v.  Dunn 549 

DECEIT;  DIFFERENCE  BETWEEN  REAL  AND  REPRESENTED  VALUE ; 
PRICE  PAID  AS  EVIDENCE  OF  VALUE. 

Page  v.  Parker 553 

DECEIT. 

Morse  v.  Hutchins 559 


CONVERSION. 

RULE  OF  HIGHER  INTERMEDIATE  VALUE. 

Suydam   v.  Jenkins 5G1 

PRINCIPAL  AND  AGENT;   CONVERSION. 

Scott  v.  Rogers 588 

DAMAGES;  MEASURE  IN  ACTIONS  FOR  RECOVERY  OF  PERSONAL 
PROPERTY. 

Page  v.  Fowler 597 

IN  AN  ACTION  FOR  THE  CONVERSION  OF  STOCKS  AS  WELL  AS  OF 
OTHER  PERSONAL  PROPERTY,  THE  MEASURE  OF  DAMAGES,  IN 
THE  ABSENCE  OF  CONTROLLING  CIRCUMSTANCES,  IS  THE 
VALUE  OF  THE  PROPERTY  AT  THE  TIME  OF  THE  CONVER- 
SION, WITH  INTEREST  TO  THE  TRIAL. 

Sturges  v.  Keith GOG 

RULE  OF  DAMAGES  IN  ACTION  FOR  CONVERSION;  PRINCIPLES 
DISCUSSED. 

Baker  v.  Drake G13 


XVI  TABLE   OF  CONTENTS. 

TROVER, 

TROVER;  PAYMENT  IN  ADVANCE;  RESALE  BY  DEFENDANT. 

Kennedy  v.  Whitwell 024 

TROVER;  GENERAL  RULE;  MITIGATION;  RESTORATION  OF  PROP- 
ERTY; CHARGES  ON  IT  AFTER  RECOVERY;  REWARD  PAID 
FOR  ITS  RECOVERY. 

Greenfield  Bank  v.  Leavitt 025 

TROVER;   CIRCUITY  OF  ACTION;   LIEN. 

Chamberlain  v.  Shaw 027 

CASE  FOR  WRONGFUL  TAKING  OF  PROPERTY. 

Bennett  v.  Lockwood 030 

TROVER;   DEPRIVATION  OF  POSSESSION;   MITIGATION. 

Chioery  v.  Viall 031 

TROVER;  ACTUAL  DAMAGE;   NOMINAL  DAMAGES. 

Johnson  v.  Stear 034 

CONVERSION;   IMMEDIATE  RIGHT  OF  POSSESSION;   MITIGATION. 

Edmondson  v.  Nuttall 040 

TROVER;   SPECIAL  VALUE. 

France  v.  Gaudet G40 

REPLEVIN. 

RECOVERY  OF  VALUE  OF  USE  OF  PROPERTY  REPLEVIED. 

Allen  v.   Fox 050 

SHERIFF. 

SHERIFF;   ESCAPE;   MITIGATION. 

Hootman  v.  Shriner 054 


TABLE   OF   CONTENTS.  xvii 

TORTS. 

INJURIES  TO  EEAL  PEOPEETY— CONTINUING  NUI- 
SANCE—MINING TRESPASSES— FLOWAGE—INJU- 
EIES  TO  PEESONAL  PEOPEETY— INJUEIES  TO 
PEESON. 

TRESPASS;  LOSS  OF  PROFITS;  CONSEQUENTIAL  DAMAGES  FOR 
DESTROYING  DAMS. 

White  v.  MoseJey 657 

CONTINUING  NUISANCE ;   REPEATED  ACTIONS. 

Battishill  v.  Reed , 658 

CASE  FOR  INJURY  TO  FREEHOLD. 

Seely  v.  Alden 662 

ESTIMATION  OF  VALUE  OF  LAND  TAKEN  FOR  MUNICIPAL  PUR- 
POSES. 

Stafford  v.  City  of  Providence 667 

DAMAGE  TO  LEASEHOLD;   NEGLIGENT  REPAIRS  BY  LANDLORD. 

McIIenry  v.  Marr 670 

INJURY  TO  PROPERTY  BY  NEGLIGENCE. 

Weber  v.  Morris  &  Essex  R.  R.  Co 674 

TRESPASS  FOR  COAL  MINED. 

Martin  v.  Porter 677 

TROVER  FOR  COAL  MINED  ON  ANOTHER'S  LAND  BY  MISTAKE. 

Forsyth  v.  Wells 679 

ACTION  AGAINST  A  TOWN  FOR  INJURIES  SUSTAINED  FROM  A  DE- 
FECT IN  THE  HIGHWAY;  EXTENT  AND  KIND  OF  DAMAGES 
RECOVERABLE;  CONSTRUCTION  OF  STATUTE  GIVING  DAM- 
AGES. 

Woodman  v.  Nottingham 685 

FLOWAGE;  ALLOWANCE  FOR  BENEFIT. 

Luther  v.  Winnisimmet  Co 692 

TORT;  PROFITS;  CASE  FOR  BUILDING  DAM,  THEREBY  INJURING 
PLAINTIFF'S  LAND. 

Simmons  v.  Brown 694 

B 


XVill  TABLE   OF   CONTENTS. 

TOUTS — emit  in  ued. 

INJURY    TO    PERSONAL    PROPERTY;     DIFFERENT    MEASURES     OF 
DAMAGES;  PROVINCE  OF  JURY. 

Ottawa  Gas-Light  &  Coal  Co.  v.  Graham 700 

PERSONAL  INJURY;    NEGLIGENCE;    EXTENT  OF   COMPENSATION  ; 
SPECIAL  DAMAGES;   CONCURRENT  NEGLIGENCE. 

Ilolyokc  v.  Grand  Trunk  R.  R.  Co 703 

CONTINUING  INJURY;    DAMAGES  AFTER  SUIT  BROUGHT. 

Puckett  v.  Smith 709 


INTRUSION  INTO  PUBLIC  OFFICE. 

RECOVERY  OF  INTRUDER'S  SALARY. 

People  v.  Miller 711 

VIOLATION  OF  TRADE-MARK. 

TRADE-MARK;   MEASURE  OF  DAMAGES. 

Graham  v.  Plate 716 

INFRINGEMENT   OF   PATENT. 

PROFITS;  ROYALTY. 

Burdell  v.  Denis 718 


SLANDER. 

SLANDER ;   SPECIAL  DAMAGES. 

Vicars  v.  Wilcocks 720 

SLANDER ;   SPECIAL  DAMAGE ;   REPETITION  OF  SLANDER. 

Ward  v.  Weeks 722 

SPECIAL  DAMAGES  IN  SLANDER. 

Lynch  v .  Knight 725 

Davies  v.  Solomon 737 


TABLE    OF   CONTENTS.  xix 

EXCESSIVE   DAMAGES. 

ACTIONS  AGAINST  CORPORATIONS. 

Illinois  Central  R.  R.  Co.  v.  Welch 738 


EXEMPLARY   DAMAGES. 

CRIMINAL  PUNISHMENT  FOR  THE  OFFENSE  WHICH  IS  THE  SUB- 
JECT OF  THE  ACTION  IS  NO  BAR  TO  THE  RECOVERY  OF 
EXEMPLARY  DAMAGES,  AND  IT  SEEMS  SHOULD  NOT  BE  AD~ 
MITTED  IN  EVIDENCE  TO  MITIGATE  THE  DAMAGES. 

Cook  v.  Ellis 741 

EXEMPLARY   DAMAGES   IN   ACTIONS    FOR    CONSEQUENTIAL  DAM- 

AGES. 

Emblen  v.  Mvers 744 


COSTS   AND  COUNSEL   FEES. 

COSTS  ;   COUNSEL  FEES  ;   EXEMPLARY  DAMAGES. 

Day  v.  Woodworth 747 

LEGAL  EXPENSES  AND  COUNSEL  FEES. 

Inhabitants  of  Westfield  v.  Mayo 752 


BREACH   OF  PROMISE. 

SEDUCTION;   BREACH  OF  PROMISE;  AGGRAVATION. 

Sherman  v.  Rawson 757 

BREACH  OF  PROMISE;     PECUNIARY  CIRCUMSTANCES  OF  DEFEND- 
ANT; MITIGATION;  AGGRAVATION. 

Kniffen  v.  McConnell 760 

BREACH    OF   PROMISE;    AGGRAVATION    BY    FAILURE    TO    PROVE 
JUSTLFICATION  ALLEGED. 

Thorn  v.  Knapp 7GG 


COLLISION. 

COLLISION ;  ACTUAL  DAMAGE  ONLY  ALLOWED  ;  NO  PROFITS. 

Smith  v.  Condry T73 


XX  TABLE  OF  CONTENTS. 

COLLISION— continued. 

COLLISION ;    SUNKEN  VESSEL. 

Williamson  v.  Barrett 778 

COLLISION;    JUDICIARY    ACT;     COSTS;     COUNSEL   FEES   IN  ADMI- 
RALTY. 

The  Baltimore 785 

COLLISION;   DIVISION  OF  LOSS;  CROSS-LIBEL;  PROOF  OF  DAMAGE 
TO  CLAIMANTS;   COSTS. 

The  Sapphire 789 


ACTIONS  ALLOWED   BY  STATUTE  FOR  INJU- 
RIES  CAUSING  DEATH. 

ACTIONS  FOR  DEATH  BY  NEGLIGENCE;  PROSPECTIVE  LOSS. 

Dalton  v.  South-Eastern  Ry.  Co 793 

PECUNIARY  VALUE  OF  A  MOTHER'S  CARE. 

Tilley  v.  Hudson  River  R.  R,  Co 796 

WIDOW'S  RIGHT  TO  RECOVER;  MEASURE  OF  DAMAGES. 

Railroad  Company  v.  Barron 803 

TELEGRAPHS. 

Note  in  reference  to  recent  decisions 809 

FIRE   INSURANCE. 

FIRE  INSURANCE;   GENERAL  AVERAGE ;   CONTRIBUTION. 

Welles  v.  Boston  Insurance  Co 810 

FIRE  INSURANCE  ;  OPEN  POLICY ;  LOSS  ON  PROPERTY  IN  A  FOR- 
EIGN COUNTRY;  MERCHANDISE  AS  DISTINGUISHED  FROM 
PROPERTY. 

Bu'gess  and  Others  v.  Alliance  Insurance  Co.;    Same  v. 

New  England  Mutual  Marine  Insurance  Co 812 


TABLE   OF   CONTENTS.  s  XXI 

FIRE  INSURANCE— continued. 

FIRE  INSURANCE;  INDEMNITY;  STIPULATIONS  AS  TO  ASCERTAIN- 
MENT OF  VALUE;  AGREEMENT  TO  REPAIR  OR  REPLACE 
DESTROYED  PROPERTY. 

The  Commonwealth  Insurance  Co.    v.    Sennett,  Barr  & 

Co , 817 

BREACH  OF  CONTRACT  TO  INSURE;  IN  THE  ABSENCE  OF  ANY 
STIPULATION  AS  TO  THE  AMOUNT  OF  INSURANCE,  OR  OF 
ANY  RULE  OR  USAGE  OF  INSURANCE  COMPANIES  AS  TO  THE 
PROPORTION  OF  THE  VALUE  WHICH  THEY  WILL  INSURE, 
THE  MEASURE  OF  DAMAGES  IS  THE  WHOLE  VALUE  OF  THE 
PROPERTY  DESTROYED. 

Ela  v.  French 822 


GENERAL   INDEX 825 


TABLE  OF  CASES  BEPORTED. 


Adams  Express  Co.  v.  Egbert,  145. 

Allen  v.  Fox,  650. 

Allen  v.  Suydarn,  393. 

Bagley  v.  Peddie,  444. 

Baker  v.  Drake,  613. 

Bain  v.  Fothergill,  45. 

Baltimore,  The,  785. 

Battishill  v.  Reed,  658. 

Beach  v.  Crain,  493. 

Bennett  v.  Lockwood,  630. 

Blacks.  Woodrow  and  Richardson, 377. 

Blanchard  v.  Ely,  240. 

Blaney  v.  Hendricks,  525. 

Blaxendale  v.   London,   Chatham  and 

Dover  Railway  Co.  211. 
Blot  v.  Roiceau  and  Rusch,  402. 
Booth  v.  Spuyten  Duyvil  Rolling  Mill 

Co.  331. 
Borries  v.  Hutchinson,  309. 
Bowman  v.  Teall,  101. 
Boyd  v.  Fitt,  463. 
Bracket  v.  M'Nair,  99. 
British  Columbia  Saw  Mill  Co.  v.  Net- 
J         tleship,  170. 
Burdell  v.  Denig,  718. 
Burgess  v.  Alliance  Ins.  Co.  812. 
Chamberlin  v.  Shaw,  627. 
Chinery  v.  Yiall,  631. 
Clare  v.  Maynard,  529. 
Clark  v.  Mayor  of  New  York,  371. 
Cockburn  v.  Alexander,  111. 
Commonwealth    Ins.    Co.    v.    Sennett 

Barr  &  Co.  817. 
Cook  v.  Ellis,  741. 
Cory  v.  Thames  Iron  Works  Co.  293. 
Cutler  v.  How,  511. 


Dagenham  Dock  Co.,  In  re,  450. 

Dakin  v.  Williams,  435. 

Dalton  v.  South-Eastern  R'y  Co.,  793, 

Dana  v.  Fiedler,  220. 

Davies  v.  Solomon,  737. 

Day  v.  Woodworth,  747. 

Dermott  v.  Jones,  375. 

Deverill  v.  Burnell,  357. 

Durst  v.  Burton,  513. 

Edmondson  v.  Nuttall,  640. 

Ela  v.  French,  822. 

Elbinger  Actien-Gesellschafft  v.  Arm- 
strong, 350. 

Emblen  v.  Myers,  744. 

Fletcher  v.  Tayleur,  258. 

Flureau  v.  Thornhill,  3. 

Forsyth  v.  Wells,  679. 

France  «.  Gaudet,  646. 

Gee  v.  Lancashire  &  Yorkshire  R'y,  138. 

Goodtitle  v.  Tombs,  1. 

Gordon  v.  Norris,  230. 

Graham  v.  Plate,  717. 

Greene  v.  Tallman,  36. 

Greenfield  Bank  v.  Leavitt,  625. 

Griffin  v.  Colver,  269.  - 

Hadley  v.  Baxendale,  126. 

Hamilton  v.  McPherson,  165. 

Hawkins  v.  Coulthurst,  496. 

Hobbs  v.  London  and  South-Western 
Railway  Co.  155. 

Hodges  v.  Thayer,  97. 

Holyoke  v.  Grand  Trunk  Railroad  Co. 
702. 

Hootman  v.  Shriner,  654. 

Home  o.  Midland  Railway  Co.  196. 

Hoy  v.  Gronoble,  226. 


XXIV 


TAHLE    ()F   CASKS    RF.I'ORTEI). 


Hughes  v.  Graeme,  384. 

Illinois  Central  It.  R.  Co.  v.  Welch,  738. 

Inhabitants  of  Weatfield  v.  Mayo,  752. 

Johnson  v.  Stear,  634. 

Kemhle  r.  Farren,  432. 

Kennedy  v.  Whitwell,  021. 

Kniffen  v.  McConnell,  760. 

Knowlea  v.  Nunn,  545. 

Kountz  v.  Kirkpatrick,  515, 

Lamar  Insurance  Co.  v.  McGlashen,  421. 

Le  Blanche  r.  London  and  North-West- 
ern Railway  Co.  191. 

Loosemore  v.  Radford,  420. 

Luther  v.  Winnisimmet  Co.  692. 

Lynch  v.  Knight,  725. 

McIIenry  v.  Marr,  670. 

McIIose  v.  Fulmcr,  347. 

Martin  v.  Porter,  677. 

Marzetti  8.  Williams,  453. 

Masterton  v.  Mayor  of  Brooklyn,  247. 

Merrimack  Manufacturing  Co.  v.  Quin- 
tard,  325. 

Messmore  v.  New  York  Shot  &  Lead 
Co.  302. 

Miller  v.  Mariner's  Church,  230. 

Mondel  v.  Steel,  363. 

Moody  v.  Leverich,  407. 

Morris  v.  Phelps,  28. 

Morse  v.  Hutchins,  559. 

Notara  v.  Henderson,  182. 

Ogden  v.  Marshall,  123. 

Ogle  v.  Earl  Vane,  316. 

Old  Colony  Railroad  Co.  v.  Evans,  34. 

Ottawa  Gas-Light  &  Coke  Co.  v.  Gra- 
ham, 700. 

Page  v.  Fowler,  597. 

Page  v.  Parker,  553. 

Passinger  v.  Tuorburn,  533. 

Penley  v.  Watts,  490. 

People  ex  rel.  v.  Mdler,  711. 

Pinney  v.  Gleason,  481. 

Pitcher  v.  Livingston.  14. 

Plummer  v.  Rigdon,  87. 

Polk  v.  Daly,  415. 

Portman  v.  Middleton,  265. 


Prehn  v.  Royal  Bank  of  Liverpool, 475. 

Prescott  v.  Trueman,  11. 

Price  v.  Green,  Ex'r.  441. 

Puckett®.  Smith,  709. 

Railroad  Co.  «.  Barron,  803. 

Rector,  &c,  of  Trinity  Church  v.  Ilig- 
gins,  502. 

Richardson  v.  Dunn,  549. 

Rolin  v.  Steward,  460. 

Roper  v.  Johnson,  336. 

Sapphire,  The,  789. 

Schell  v.  Plumb,  507. 

Scott  v.  Rogers,  588. 

Seely  v.  Alden,  662. 

Shepard  v.  Milwaukee  Gas-Light  Co. 
284. 

Sherman  r.  Rawson,  757. 

Simmons  v.  Brown,  694. 

Smeed  v.  Foord,  275. 

Smith  v.  Condry,  773. 

Smith  v.  Griffith,  104. 

Somers  v.  Wright,  90. 

Staats  v.  Ten  Eyck's  Ex'rs,  4. 

Stafford  v.  City  of  Providence,  667. 

Sturges  v.  Keith,  606. 

Suydam  v.  Jenkins,  561. 

Tayloe  v.  Sandiford,  427. 

Thorn  v.  Knapp,  766. 

Tilley  v.  Hudson  River  Railroad  Co. 

796. 
Vicars  v.  Wilcocks,  720. 
Ward  v.  New  York  Cent.  R.  R.  Co.  177. 
Ward  v.  Weeks,  722. 
Weber  v.  Morris  and  Essex   Railroad 

Co.  644. 
Welles  v.  Boston  Ins.  Co.  810. 
White  v.  Moseley,  657. 
Wicker  v.  Hoppock,  499. 
Williams  v.  Vanderbilt,  152. 
Williamson  v.  Barrett,  778. 
Wolcott,  Johnson  &  Co.  v.  Mount,  540. 
Woodman  v.  Nottingham,  685. 
Woodward  r.  Powers,  546. 
Worrall  r.  Munn,  40. 
Wrightup  v.  Chamberlain,  526. 


TABLE    OF   CASES    CITED. 


Aberdeen  v.  Blackmar,  505. 

Adams  v.  Cordis,  815. 

Aiken  v.  Western  R.  R.  Co.  290. 

Alabama,  Tbe,  793  n. 

Alcock  v.  Hopkins,  815. 

Alder  v.  Keighley,  136,  263,  288. 

Allen  v.  Dykers.  622. 

Allen  v.  Jarvis,  234. 

Alna  v.   Plummer,  35. 

Allthorf  v.  Wolfe,  677  n. 

Allsop  v.  Allsop,  730. 

Amery  v.  Delamere,  571. 

Amiable  Nancy,  The,  777  n,  783. 

Andrews  v.  Durant,  526  n. 

Andrews  v.  Hoover,  521. 

Anna  Maria,  The,  777  n. 

Ann  Caroline,  The,  787. 

Apollo,  The,  585. 

Archard  v.  Hornor,  408,  409,  412. 

Archer  v.  Williams,  623. 

Armstrong  v.  Perry,  537. 

Astley  v.  Weldon,  435,  437,  438,439,447. 

Aslin  v.  Parkin,  2. 

Atlas,  The,  793  n. 

Attersoll  v.  Stevens,  45. 

Attorney-General  v.  Case,  776. 

Bacon  v.  Brown,  244. 

Bailey  v.  Clay,  244. 

Bain  v.  Fothergill,  36  n. 

Baker  v.  Drake.  90. 

Baker  v.  Mair,  486. 

Baker  v.  Wheeler,  571.  572. 

Baldv  v.  Stratton,  759. 

Ballet  v.  Ballet,  27. 

Ballou  v.  Farnum,  705,  707. 

Baltimore    City  Passenger  Ry.    Co.    i\ 

Sewell,  623  n. 
Baltimore  Ins.  Co.  v.  Dalrymple,  608. 
Bank  of  Montgomery  v.  Reese,  349,  520, 

623  n. 
Bare  v.  Hoffman,  662. 
Barnes  v.  Bartlett,  587. 
Barnham  v.  Nichols,  90. 
Barnum  v.  Van  Dusen,  546. 
Barrick  v.  Buba,  341. 
Barron  v.  Cobleigh,  690. 
Barry  v.  Bennett,  571. 
Bartlett  v.  Blanchard,  330. 


Barton  v.  Glover,  430  n,  437. 
Barton  Coal  Co.  v.  Cox,  685. 
Bass  »,  Chicago  &  Northwestern  R.  R. 

Co.  747  n. 
Basten  v.  Butter,  369. 
Batchelder  v.  Sturgis,  330. 
Baxendale  v.    London,    Chatham,   &c. 

Ry.  Co.  753. 
Baylis  v.  Usher,  103. 
Beauchamp  v.  Damory,  32. 
Belknap  v.  Railroad,  746. 
Bement  v  Smith,  417. 
Bendernagle  «.  Cocks,  413. 
Bennett  v.  Thompson,  44. 
Binninger  v.  Crater,  542. 
Blake  v.  Midland  Rv.  Co.  13o,707,  795  n. 
Blanchard  v.  Ely,  271,  273,  274. 
Blasdale  v.  Babcock.  537. 
Blydenburgh  v.  Welsh,  521. 
Board  man  v.  Keeler,  90. 
Bodley  v.  Reynolds,  571. 
Bonadaile  v.  Bruxtoc,  534. 
Bonsteel  v.  Vanderbilt,  154. 
Booker  v.  Goldsborough,  275. 
Boorman  v.  Nash,  252,  256. 
Borries  v.  Hutchinson,  354,  543. 
Boston  v.  Boston  &  Lowell  R.  R.  Co.  735. 
Bowyer  v.  Cook,  659. 
Boyer  v.  Cook,  661. 
Brannin  v.  Johnson,  585. 
Brass  v.  Worth,  623. 
Bratt  v.  Ellis,  56,  75. 
Brewster  v.  Silliman,  653. 
Bradburn    v.   Great    Western  Ry.    Co. 

677  n. 
Brackett  v.  McNair,  124,  179,  245. 
Bridge  v.  Wain,  308,  542. 
Brizee  v.  Maybee,  571,  587,  653. 
Brierly  v.  Kendall,  633,  636,  637. 
Briggs  v.  Vanderbilt,  154. 
British  Columbia  Saw  Mill  Co.  v.  Net- 

t'ieship,  209,  210. 
Brooks  ».  Hubbard,  483,  486,  488. 
Brown  v.  Edgerton,535. 
Brown  v.   Muller,  340,    341,  342.  345, 

346,  347. 
Buckmaster  v.  Grundy,  88. 
Burnett  v.  Lynch,  461,  457. 
Burns  v.  Buck,  768. 


XXVI 


TABLE   OF   CASES   CITED. 


Burt  r.  Dutcher,  618,  019. 
Burton  v.  Pinkerton,  161. 
Bussy  r.  Donaldson,  520. 
Bustard's  Case,  31. 
Butler  v.  Nehring,  654. 
Buxton  v.  Lister,  386. 
Byrne  c  Rich,  98. 

Caddv  v.  Barlow,  742. 

Cady®.  Allen,  505. 

Caldwell  v.  Murphy,  707. 

Caldwell  r.  N.  J.  Steamboat  Co.  747  n 

CaltOD  v.  Bragg,  526  n. 

Canada,  The,  787. 

Cane  v.  Golding,  660. 

Cannell  r.  McLean,  24  I. 

Cannon  i\  Folsom,  602. 

Canning  v.  Williamstown,  707. 

Capper  v.  Porster,  119,  121,  122,  123. 

Carpenter  r.  Stevens,  585,  586. 

Carter  v.  Tuck,  380. 

Caruthers  ».  Lydebotham,  776. 

Cary  o.  Gorman,  251,  538. 

Chamberlain  v.  Collinsor,  685. 

Chambertine  v.  McAllister,  410. 

Chesman  v.  Nainby,  443, 

Chesterman  9.  Lamb,  244. 

Chicago  &  Rock  Island   R.  R.  Co.  v. 

Morris,  809. 
Cbinery  v.  Viall,  636. 
Churchill  v.  Hunt,  501,  505. 
Churchward  v.  Queen,  382. 
City  of  Chicago  v.  Major,  703,  809. 
City  of  Cincinnati  v.  Evans,  287,  291. 
Clap})  v.  Walter,  654. 
Clare  r.  Maynard.  244,  251. 
Claringbould  ».  Curtis,  386. 
Clark  *>.  Marsiglia,  109,  383,  410. 
Clark  v.  Pinney,  223,  244,  573,  579,  580, 

581,  582,  583,  584,  601,  621. 
Classman  v.  Lacaste,  413. 
Clunness  v.  Pezzey,  150. 
Clyde,  The,  787. 
Coats  v.  Holbrook,  718. 
Colburn  v.  Woodworth,  413. 
Cockburn  r.  Alexander,  361. 
Collard  v.  S.  E.  Railway  Co.  180, 181  n. 
Collen  v.  Wright,   386,  389,  391,   392, 

393  n. 
Columbus,  The,  174,  789. 
Combs  v.  Tarlton,  343. 
Commonwealth  ».  Bliss,  743. 
Commonwealth  v.  Elliott,  743. 
Connellc.  McLean,  90. 
Connery  v.  Jefferson,  690. 
Cook  v.   Commissioners   of   Hamilton, 

228. 
Cooke  v.  Hartle,  571. 
Cort   v.    Ambergate    R.    R.    Co.   279, 

383. 
Cortelyou  v.  Lansing,  610,  619,  620. 


Cory  v.  Thames  Iron  Works  Co.  176,335, 

355,  543. 
Costigan  v.  M.  &  H.  R.  R.  Co.  169, 414. 
Cotterel  v.  Hook,  430  n. 
Cox  o.  Walker,  531. 
Crisdee  v.  Bolton,  437. 
Cumberland,   &c.    Canal  v.  Hutchings, 

662. 
Curtis  v.  Rochester   &  Syracuse  R.   R. 

Co.  708  n. 
Cashing  v.  Ship  John  Frazer,  791. 
Cutter  v.  Powell,  377,  409. 
Cutting  v.  Grand  Trunk  R.  R.  Co.  330. 

Dain  v.  Wycoff.  762. 

Dakiu  v.  Williams,  448. 

Dana  v.  Fiedler,  234. 

Danube  &  Black  Sea  Co.  v.  Zenos,  341. 

Darbey  v.  Cassaway,  654. 

Davies  v.  Penton,  437,  447. 

Davis  v.  Hill,  689. 

Davis  v.  Oswell,  571. 

Davis  v.  Shields,  223,  234. 

Davis  v.  Talcott,  289. 

Day  v.  Davies,  380. 

De  Cuadra  v.  Swann,  191. 

Delancy  v.  Stoddart,  400. 

Delavergne  v.  Norris,  18  n. 

Dennis  v.  Cummins,  438. 

Derby  ».  Johnson,  383. 

Derry  v.  Fletnir,  677  n. 

De  Visme  v.  De  Visme,  45. 

Devlin  v.  Mayor,  275  n. 

De  Wint  v.  Wiltse,  246,  290. 

Dey  9,  Dox,  223,  234,  256. 

Dillenbach  v.  Jerome,  571. 

Dillon  v.  Anderson,  414,  418. 

Dimmick  v.  Lockwood,  39,  243. 

Dingle  v.  Hare,  544  »,  5C0. 

Doherty  v.  Dolan,  86  n. 

Dormay  v.  Borradaile,  498. 

Douglass  v.  Kraft,  600. 

Douty  v.  Bird,  665. 

Downs  v.  Back,  609. 

Dresser  v.  Dresser,  509. 

Driggs  v.  Dwight,  245. 

Duflield  v.  Scott,  491. 

Duncan  v.  Markley,  710. 

Durkee  v.  Mott,  410. 

Dustan  v.  Mc Andrews,  417. 

Dwight  v.  Enos,  651. 

Edgar  v.  Bois,  483. 

Elbinger  v.  Armstrong,  334. 

Elderton  v.  Emmons,  409. 

Ehgel  v.  Fitch,  67,  71,  76,  77,  78,  79,  82, 

85. 
Ellis  v.  Wire,  649  n. 
Emblen  v.  Myers,  691. 
Emmons  v.  Elderton,  413,  414. 


TABLE   OF  CASES  CITED. 


XX  vu 


Eugenie,  The,  789. 
Ewbank  v.  Nutting,  192. 

Farmers'  Bank  v.  Mackie,  572. 

Fewing  v.  Tisdall,  409. 

Fielden  v.  Starkin,  16. 

Finch  v.  Blount,  571,  572. 

Fisher  v.  Prince,  571,  573. 

Fisher  v.  Val  de  Travers  Asphalte  Co. 
220  n,  753. 

Fisher  v.  Wainwright,  380. 

Fisher*.  Whitten,  574,  575,  576; 

Fish  v.  Foley,  509. 

Fisk  v.  Hicks,  560. 

Fitzhugh  v.  Wiman,  651. 

Fletcher  v.  Tayleur,  288. 

Flureau  v.  Thornhill,  6,  16.  54,  55,  56, 
57,  58,  59,  6Q,  63,  64,  65,  66,  68,  69, 
70,  72,  74,  75,  76,  77,  78,  79,  80,  81, 
82,  83,  84,  85,  89. 

Flying-fish,  The,  788. 

Forsyth  v.  Palmer,  520,  665. 

Foster  v.  Deacon,  44. 

Fouldes  v.  Willoughby,  644. 

Fox  v.  Harding,  96,  228,  288,  329,  542. 

France  v.  Gaudet,  203. 

Franchot  v.  Leach,  35. 

Franklin  v.  South  Eastern  Railway  Co. 
795. 

Freeman  v.  Clute,  264  n,  273. 

French  v.  Brookes,  413. 

Friedlander  v.  Pugh,  Slocumb  &  Co.  239. 

Frost  v.  Knight,  341,  344,  345,  347. 

Frothingham  v.  Evertson,  405,  408. 

Fry  v.  Dubuque  &  South-Western  Rail- 
way Co.  708  n. 

Fulsome  v.  Concord,  709  n. 

Gainsford  v.  Carroll,  256,  583,  584,  609. 
Gale  v.  Dean,  88. 
Galsworthy  v.  Strutt,  448. 
Gamecock,  The,  793  n. 
Gandell  v.  Pontigny,  408. 
Ganson  v.  Madigan,  234. 
Gazelle,  The,  787. 

Gee  v.  Lancashire  &  Yorkshire    Rail- 
way Co.  164,  474. 
Georgia  v.  Kepford,  736. 
Geiger  »,  Harris,  714. 
Germaine  v.  Burton,  369. 
Gerrard  v.  Dickenson,  660. 
Gilbert  v.  Wiman,  504,  505r 
Gill  v.  Bicknell,  35,  235. 
Gillard  v.  Brittan,  645. 
Girard  v.  Taggart,  519,  234. 
Goodman  v.  Pocock,  409,  413. 
Gore  v.  Brazier,  18  n. 
Gray  v.  Briscoe.  32. 
Gray  v.  Portland  Bank,  584. 
Green  v.  Farmer,  629. 
Green  v.  Greenbank,  459. 


Greening  v.  Wilkinson,   573,  609,  620 

626. 
Griffin  v.  Colver,  168,  178,  180,  305,335, 

534. 
Grill  v.  General  Iron  Serew  Collier  Co 

191. 
Griswold  v.  Sabin,  36  n. 
Guernsey  v.  Carver,  413. 
Guthrie  v.  Pugsley,  509. 

Hadley  v.  Baxendale,  55,  76,  77,  142. 

143,  144,  169,   202,   205,  206,  208, 

209,  219,  268,  278,  280,  288,  297, 

298,  299,  312,  333,  334,   355,  472, 

474,  475,  533,  543. 
Hallett  v.  Novion,  571. 
Hamer  v.  Hathawray,  600. 
Hamilton  v.  McPherson,  414,  418. 
Hamilton  v.  New  York  Central,&c.  R.  P. 

Co.  747  n. 
Hamilton  et  ah  v.  Wilson,  17  n. 
Hamlin  v.  Great  Northern  Railway  Co. 

158,  161. 
Hammond  v.  Hannen,  36  n. 
Hancock  v.  Austin  641. 
Harding  v.  Town  of  Townshend,  677 
Hardy  v.  Martin,  430  n. 
Hargous  v.  Ablon.  308. 
Harmony  v.  Bingham,  179. 
Harriett  Newhall,  The,  777  n. 
Harrison   v.    Harrison,   573,   576,    577, 

609,  610,  620,  623. 
Harrison  v.  Wright,  430  n. 
Hart  v.  Evans,  665. 
Hart  v.  Western  R.  R.  Co.  676. 
Hayden  v.  Attleborough,  689. 
Heard  v.  James,  685. 
Heckscherr.  McCrea,  169. 
Heimu.  Wolf,  411. 
Hexter  v.  Knox,  86  n. 
Hickman  v.  Havne,  324  n. 
Hill  v.  Hobart,  90. 
Hinde  v.  Liddell,  316  n. 
Hoagland  v.  Segur.  435. 
Hochster  v.  De  "la  Tour,  341,  342,  343, 

346,  413. 
Hoffman  v.  Union  Ferry  Co.  793  ;:. 
Holden  v.  Lake  Company,  700. 
Holler  v.  Weiner,  229. 
Holmes  v.  Wilson,  658,  661. 
Hopkins  v.  Atlantic  &  St.  Lawrence  R. 

R.  Co.  707. 
Hopkins  v.  Grazebrook,  57,  58,  59,  60. 

63,  65,  66,  70,  71,  72,  73,77,  78,  79, 

80,  82,  84,  85,  89. 
Hopkins  v.  Lee,  90,  244. 
Home  v.  Midland  Railway  Co.  335,  356, 

543. 
Huff®.  Lawlor,  449  n. 
Huggeford  v.  Ford,  587. 
Hunt  v.  Burnet,  773. 


xxvm 


TABLE   OF  CASES  CITED. 


Huntington  »,    Ogdensburg,  &c.  Rail- 

road  Co.  411,  418. 
Hussey  v.  Fallow,  815. 

Ingalls  v.  Lord,  109.  400. 
Ingram  v.  Law  on,  6P,8. 
Ives  v.  Humphrey,  286. 

Jacks  v.  Bell.  742,  743. 

Jackson  v.  Port,  504,  505. 

Jacobs  v.  Laussat,  571. 

Jacobs  v.  Peterborough  &  Shirley  R.  R. 

Co.  35,  235. 
Jarvis  v.  Rogers,  636. 
Jeffrey  v.  Bigelow,  546. 
Johnson  v.  Jenkins,  768,  760,  773. 
Johnson  v.  Johnson,  75. 
Johnson  v.  Shedden,  425. 
Johnson  v.  Sumner,  571. 
James  v.  Biddington,  762. 
Jones  v.  Bright,  535. 
Jones  v.  Clay,  742. 
Jones  v.  Just,  560. 
Jones  v.  Dyke,  57,  75. 

Keaggy  v.  Tlite,  608,  609,  610. 
Keeler  v.  Wood,  10  n. 
Keezeler  v.  Thompson.  773. 
Kellogg  v.  Wilcocks.  17  n. 
Kemble  v.  Farren,  447. 
Kennedy  r.  Strong,  105,  571. 
Kennedy  v.  Whitmore,  571. 
Kennedy  v.  Whitwell,  626. 
Kerr  v.  Forgne,  709  n. 
Ketchell  v.  Burns,  501. 
Kimmel  v.  Stoncr,  623. 
King  v.  Boston,  369. 
King  v.  Dunn,  690. 
Kingsbury  v.  Smith,  528  n. 
Kirkpatrick  v.  Downing,  90. 
Kissam  v.  Forest,  107. 
Kist  v.  Atkinson,  369. 
Knapp  v.  Maltby,  438,  448. 
Kniffen  v.  McConnell,  759.  771. 
Kortright  v.  Commercial  Bank  of  Buf- 
falo, 621. 
Kortz  v.  Carpenter,  17  n. 

Laird  v.  Pim,  34. 
Laird  v.  Prince,  235. 
Lamond  v.  Davall.  632. 
Lampleigh  r.  Bathwait,  217. 

Easier  v.  Allen,  584. 

Laurent  v.  The  Chatham  Fire  Ins.  Co. 

820. 
Lawrie  v.  Douglas,  191. 
Lawrence  v.  Chase,  90. 
Lawton  v.  Sweeny,  150. 
Lea  t.  Whitaker,  449  n. 
Leather  Cloth  Co.  v.  Hirschfield,  718. 
Leftingwell  v.  Elliott,  10  n. 


Leggett  v.  Mutual  Life  Ins.  Co.  450  n. 

LeGuen  v.  Gouverneur,  401. 

Leigh  v.  Paterson,  252. 

Lena,  Tlie,  788. 

Letcher  v.  Woodson.  243,  244. 

Lewis  v.  Rucker,  425,  427. 

Lincoln  v.  Saratoga  &  Schenectady  R. 
R.  Co.  707. 

Lindsey  r.  Town  of  Danville,  709  n. 

Linsley  v.  Bushnell,  707. 

Lillard  v.  Whitaker.  571. 

Little  Schuylkill  Nav.  &c.  Co.  v.  Rich- 
ards, 666. 

Littlefield  v.  Biddeford,  690. 

Littlehale  v.  Dix,  759. 

Locke  v.  Fuzre,  85  n. 

Loder  v.  Kekule,  560. 

Lodge  v.  Spooner,  815. 

Loker  v.  Damon,  169,  788. 

London  and  Northwestern  Railway  Co. 
138  n. 

Lord  Northampton's  Case,  724. 

Lotus,  The,  788. 

Lovegrove  v.  Fisher,  544. 

Lowe  v.  Harewood,  660. 

Lowry  v.  Western  Union  Tel.  Co.  809. 

Love  v.  Peers,  430  n. 

Lund  v.  Tyngsborough,  690. 

McArthur  v.  Seaforth,   573,    57C,    577, 

579,  608.  610,  620. 
McBoyle  v.  Reeder,  264  n. 
McCabe  v.  Morehead,  587. 
McDonald  v.  Hodge,  490  n. 
McGavick  v.  Chamberlain,  654. 
McGary  v.  Hastings,  40  n. 
McGee  v.  Roen,  505. 
McGlowry  v.  Croghan,  228. 
Mcintosh  v.  Lown,  413. 
McKean  v.  Turner,  236. 
McKee  *.  Brandon,  88. 
McKnight  v.  Ratcliff,  665. 
McKyring  v.  Bui',  763. 
McNeill  v.  Reid,  697. 
McPherson  v.  Daniels,  724, 
Mack  v.  Patchin,  85  n. 
Magie  v.  Lavel,  449  n. 
Magnin  v.  Dinsmore,  525. 
Mailler  v.  Express  Propeller  Line,  793  n. 
Mainwaiing  r.  Newman,  242. 
Malachy  v.  Soper.  660. 
Mallan  v.  May,  443. 
Mallory  v.  Lord,  234. 
Mann  v.  Eckford,  505. 
Margraf  v.  Muir.  86  n. 
Markham  v.  Jaiidon,  613,  617,  618,  623. 
Marquart  o.  La  Farge,  290, 
Marston  r.  Hobbs,  20. 
Martin  v.  Porter,  44. 
Marzetti  v.  Williams,  461,  473,  478,479. 
Mason  v.  Sainsbury,  675,  676. 


TABLE   OF   CASES   CITED. 


XXIX 


Masterton    r.  Mayor  of    Brooklyn,  96, 

228,  272,  288,  542,  697. 
Matthews  v.  Ooe,  614,  622. 
Mattoon  v.  Pierce,  586. 
Maye  v.  Tappan,  685. 
Mayor  v.  Colgate,  507. 
Meason  r.  Phillips,  483. 
Medbury  v.  N.  Y.  &  E.  Road,  180. 
Medhurst  v.  Balam,  735. 
Mellor  v.  Spateman,  458. 
Mercer  v.  Jones,  571,  578,  600,  609,  610. 
Merrils  v.  Tariff  Manuf.  Co.  246. 
Messmore  v.  N.  Y.  Shot  Co.  336. 
Middleton  v.  Bryan,  586. 
Milburn  v.  Belloni,  544  n. 
Miller  v.  Mariner's  Churcli,    169,    246, 

256,  501,  788. 
Milwaukee  &  St.  Paul  Railway  Co.  v. 

Army,  747  v. 
Monmouth  Fire  Ins.  Co.  v.  Hutchinson, 

676. 
Moody  v.  Leverich,  419. 
Moody  v.  McDonald.  691. 
Moody  v.  Whitney,  60S. 
Moon  v.  Raphael,  643. 
Moore  v.  Meagher,  735. 
Moore  v.  Payne,  103. 
Mooers  v.  Wait,  45. 
Mooring  v.  Campbell,  677  n. 
Mordy  v.  Jones,  190. 
Morford  v.  Woodworth,  691. 
Morgan  v.  Powell,  44. 
Mors  le  Blanch  v.  Wilson,  214,  216,  217, 

218,  219. 
Morse  v.  Hutchins,  548. 
Muir  v.  United  Ins.  Co.  426. 
Muller  v.  Eno,  537,  560. 
Mullett  v.  Mason,  546. 
Murray  v.  Burling,  626. 
Myers  v.  Malcome,  762. 

Neale  v.  Wyllie,  491,  492. 

Negus,  Matter  of,  501,  5o5. 

Nelson  v.  Bridges,  45. 

New  Jersey,  The,  787. 

New  Jersey  Express  Co.  v.  Nichols,  542. 

Niagara,  The,  786. 

Niblo  v.  The  North  American  Ins.  Co. 

820. 
Nobles  v.  Bates,  438. 
Nones  v.  Northhouse,  709  n. 
Norris  v.  Litchfield,  689. 
North-Western  Ins.   Co.  v.  Phasnix  Oil 

&  Candle  Co.  819. 
Noyes  v.  Phillips,  449  n. 
Nurse  v.  Barnes,  246. 

O'Connor  v.  Foster.  101,  124,  519. 
O'Hanlon  v.  North  R.  R  Co.  179. 
Ogle  v.  Lord  Vane,  175. 
Old  Colony  Railroad  r.  Evans,  235. 


Oldfield  v.  New  York  &  Harlem  R.  R. 

Co.  809. 
Oliver  v.  Hawley,  539. 
Orr  v.  Bigelow,  234. 
Otter  v.  Williams,  610. 
Pacific  Ins.  Co.  v.  Conard,  585. 
Packet  Co.  v.  Sickles,  720. 
Pactolus,  The,  787. 
Page  v.  Fowler,  598. 
Page  v.  Pavey,  535,  544  n. 
Paine  v.  Meller,  45. 
Panama,  The,  182. 
Park  v.  Boston,  608. 
Parks  v.  Morris  Axe  &  Tool  Co.  514. 
Paul  v.  Frazier,  759. 
Pennsylvania  R.  R.  Co.  v.  McCloskey, 
809. 

People  v.  General  Sessions  of  Genesse, 
743. 

Pepoon  v.  Clarke,  710. 

Perkins  v.  Concord  R.  R.  Co.  707. 

Phil.  Wil.  &  Balto.  R.  R.  Co.  v.  How- 
ard, 384,  697. 

Philpott  v.  Swann,  190. 

Pinkerton  v.  Manchester,  &c.  R.  R.  Co. 
603,  611,  623. 

Pinney  v.  Clark,  487. 

Pollard  v.  Dwight,  17  n. 

Pollen  &  Colgate  v.  Le  Roy  &  Smith, 
306. 

Ponsonby  v.  Adams,  430  n. 

Pordage  v.  Cole,  382. 

Port  v.  Jackson,  501. 

Porter  v.  Wood,  264  n. 

Potter  v.  Lansing,  400. 

Pounsett  v.  Fuller,   59,   60,   65,  68,  76, 
78,  89. 

Pow  v.  Davis,  386. 

Powers  v.  City  of  Council  Bluffs,  662. 

Prescott  v.  Trueman,  18  n. 

Price  v.  Green,  448. 

Propeller  Monticello  r.  Mollison,  677  n. 

Pumpelly  v.  Phelps.  85  n. 

Railroad  Co.  v.  Howard,  228,  287. 

Rand  v.  Railroad,  235,  236. 

Rand  v.  White  Mountain  R.  R.  Co.  623. 

Randall  v  Everest,  437. 

Randall  v.  Roper.  314,  536,  544. 

Ransom  v.  N.  Y.  &  Erie  R.  R.  Co.  707. 

Rapalye  v.  Mackie,  564. 

Reab  v.  McAllister,  243. 

Read  v.  Fairbanks,  633. 

Rebecca,  The,  787. 

Reed  v.  Randall,  306,  307. 

Reggio  v.  Bragiotti,  537,  753. 

Reid  v.  Hoskins,  341. 

Reilly  v.  Jones,  437. 

Retallick  v.  Hawkes,  380. 

Rex  v.  Fielding,  743. 

Rex  v.  Sparrow,  742. 


XXX 


TABLE   OF  CASES  CITED. 


Richards  r.  Eddick,  235,  417. 
Richardson  o.  Mellish,  328. 
Richardson  d,  Bpencer,  655, 
Eliding  t>.  Smith,  730  n. 
Riley  v.  Home,  2o8,  210. 
Ripka  r.  Sergeant,  005. 

Robb  r.  Mann.  665. 

Roberts  v.  Roberts,  737. 

Robertson  r.  Dumaresq,  499. 

Robertson  v.  Lemon,  10  n. 

Robinson  b.  Bland,  526  n. 

Robinson  d   Harman,  54,64,65,75,78,89. 

Rogers  v.  Bpence,  571. 

Rogers  >\  Steamer  St.  Charles,  791. 

Rolfe  r.  Peterson,  180 

Rolin  r.  Steward,  290,  475,  478,  479. 

Romaine  v.   Van  Allen,    002,  017,  018, 

019,  020  622. 
Rowley  r.  Oibbs,  653. 
Royalton    o.     Royalton    &    Woodstock 

Turnpike  Co.  256. 
Russell  v.  Butterfield,  501. 

Bainter  v.  Ferguson,  444. 

Salado  College  v.  Davis,  751  n. 

Sanders  v.  Stuart,  809. 

Sands  v.  Lilienthal,  179. 

Sargent  v.  Franklin  Ins.  Co.  571. 

Sauer  v.  Schulenberg,  7G5  n. 

Sawyer  v.  Mclntyre,  35. 

Schnable  v.  Koehler,  665. 

Schooner  Catherine,  The,  791. 

Schott  v.  Schwartz,  505. 

Schwerin  >\  McKee,  520  n. 

Scotl  ?\  Leary,  380. 

Scott  v.  Rogers,  C03,  018,  019. 

Bears  v.  Boston,  35,  235. 

Begar  v.  Town  ofBankhamsted,  707. 

Belleck  v.  Smith,  572. 

Sells  v.  Hoare,  103. 

Bewall's  Falls  Bridge  r.  Fisk,  289. 

Shadwell  v.  Hutchinson,  001. 

Shaffer  v.  Lee,  509. 

Shannon  v.  Comstock,  169,  256,  417. 

Shaw  v.  Boston  &  Worcester  R.  R.  Co. 

707. 
Shaw  v.  Nudd,  256. 
Shepperd  z>.  Hampton,  250,  583. 
Shepherd  v.  Johnson,  573,  576,  577,008. 

610,  020. 
Sherlock  o.  Ailing,  077  n. 
Sherman  v.  Hudson  River  Railroad  Co. 

101. 
Sherwood  r.  Sutton,  560. 
Shiels  v.  Davies,  369. 
Shotwell  v.  Wendover,  571. 
Siebel  v.  Springfield,   638. 
Bikes  r.  Wild,  55,  04,  05,  66,  67,  68,  71, 

72,  76,  80. 
Silsbury  r.  McCoon,  683. 
Sims  v.  Cox,  490  n. 


Singer  v.  Farnsworth,  264  n. 

Sisson  v.  CI.  &  Tol.  R.  R.  Co,  180. 

Sleuter  v.  Wallhaum,  611. 

Sloman  v.  Walter,  430  n. 

Blosson  v.  Beadle,  438. 

Since  v.  Huddleston,  244 

Smeed  v.  Foord,  181,  474,  533,  537. 

Smethurst  v.  Woolston,  519. 

Smith  v.  Condry,  783. 

Smith  v.  Dickenson,  430. 

Smith  v.  Dunlap,  610,  611. 

Smith  v.  Green,  546. 

Smith  v,  Griffith,  523,  602. 

Smith  v.  Haynar,  408. 

Smith  v.  McGttire,  542. 

Smith  v.  Richardson,  245. 

Smith  v.  Smith,  483,  488. 

Smith  v.  Strong,  98. 

Smith  v.  Thompson,  411,  413. 

Smithurst  v.  Woolson,  584. 

Snow  v.  Roys,  565. 

Sondes  v.  Fletcher,  499. 

Somerville,  &c.  R.  R.  Co.  v.  Doughty^ 

670. 
Southard  v.  Rexford,  707,  768,  771. 
Spear  ».  Smith,  447. 
Spencer  v.  Halsted,  169. 
Spencer  v.  Tilden,  438. 
Spottswood  v.  Clark,  718. 
Sproule  v.  Tor,  571. 
Staats  v.  Ten  Eyck  Ex'rs,  14,  15,  20,  23,. 

25,  27. 
Stanley  v.  Gaylord,  690. 
Stannard  v.  Ullithome,  380. 
Stanlon  v.  Small,  234. 
Startup  v.  Cortazzi,  583,  623. 
State,  Rundle,  v.  Moore,  400. 
Stevens  v.  Lyford,  235. 
Stevens  v.  Son,  571. 
Stitzell  v.  Reynolds,  738. 
Stiles  v.  White,  500. 
Stockbridge    Iron    Co.    v.    Stove   Iron 

Works,  685. 
Street  v.  Blay,  368. 
Sturgis  v.  Clough,  787. 
Surre  v.  Leach,  640  n. 
Suydam  v.  Jenkins,  591,  600,  608,  622, 

653. 
Swead  v.  Badley,  660. 
Swift  v.  Barnes,  256,  584,  585. 

Tarleton  v.  McGawdv,  698. 

Tasbnrgh  v.  Day.  060. 

Tayloe  v.  Sandiford,  430  n. 

Taylor  v.  Maguire,  264  n. 

Taylor  v.  Read,  501. 

Teese  v.  Huntington,  751  n. 

Templer  v.  McLachlan,  369. 

Theobald  v.  Railway  Passenger  Ins.  Co_ 

707. 
Thomas  v.  Allen,  504,  505. 


TABLE   OF   CASES   CITED. 


XXX! 


Thomas  v.  Clarke,  116,   117,  118,  119, 

121,  123. 
Thompson  v.  Gibson,  659,  661. 
Thompson  t>.  Jackson,  289. 
Thompson  v.  Shattuck,  788. 
Thompson  v.  Wood,  410. 
Tindal  v.  Bell,  219,  786. 
Thornburgh  v.  Whitaker,  125. 
Thornton  v.  Place,  369. 
Tome  v.  Parkersburg  Branch  R.  R.  Co. 

406. 
Trask  v.  The  State  Fire  &  Marine  Ins. 

Co.  819. 
Tronson  v.  Dent,  187. 
Trout  v.  Kennedy,  521. 
Tubbs  v.  Van  Kleek,  759. 
Tucker  v.  Wright,  575. 
Tuttle  v.  Brown,  560. 
Twinam  v.  Swart,  653. 
Tyers  v.  Rosedale  &  Ferrv  Hill  Iron  Co. 

324. 

Usher  v.  Noble,  425. 

United  States  v.  Burnham.  501. 

United  States,  Morris  v.  Summervil,  400. 

Van  Alstyne  v.  Indiana,  &c.  R.  R.  Co. 

412. 
Vance  v.  Journe,  584. 
Van  Ness  v.  Forrest,  242. 
Van  Rensselaer  v.  Jewett,  226. 
Van  Wart  v.  Woolley,  398,  397,  400. 
Vaughan  v.  Wood,  623. 
Vicars  v.  Wilcox,  552,  729. 
Voorhees  v.  Earl,  538. 

Wade  v.  Le  Roy,  289. 

Wager  v.  Schuyler,  509,  510. 

Waldron  v.  McCartv,  17  n. 

Walker  v.  Borland,"608. 

Walker  v.  Moore,  59,  63,  64,  71,  72,  75. 

80,  251. 
Walker  v.  Smith,  665. 
Wallace  v.  Mayor  of  New  York,  691. 
Wallace  v.  Tellf'air,  400. 
Walsh  v.  Chicago,  Milwaukee,  &c.  R. 

R.  Co.  747  n. 
Walton  v.  Fothergill,  281. 
Ward  v.  N.  Y.  Cent.  R.  R.  Co.  181  n. 
Ward  v.  Smith,  245,  287. 
Waters  v.  Towers,  279,  697. 
Watson  v.  Ambergate,  Nottingham,  &c. 

Railway  Co.  149,  151  n. 
Watt  v.  Potter,  571. 
Weaver  v.  Bachert,  759. 


Webb  v.  Pond,  505. 

Webster  v.  De  Tastet,  400. 

Wehle  v.  Butler,  525. 

Weller  v.  Baker,  459. 

Wells  v.  Aberthaney,  90. 

Wells  v.  Padgett,  763,  768. 

Wells  v.  Watling,  458. 

West  v.  Beach,  105. 

West  v.  Wentworth,  573,  579,  580,  581, 

582,  583.  601,  621. 
Whelan  v.  Lynch,  623. 
Whitaker  v.  Sandifer,  410. 
White  v.  Clark,  10  n. 
White,  Receiver  v.  Madison,  393  n. 
White  v.  Mosely,  699. 
White  v.  Webb,  571. 
Whipple  v.  Walpole,  691,  692. 
Whitaker  v.  Sumner,  639. 
Whitehouse  v.  Atkinson,  572. 
Whitmore   v.   South    Boston    Iron   Co. 

560. 
Whittemore  v.  Coates.  235. 
Whitten  v.  Fuller,  573.  574,  575,  576. 
Wibert  v.  N.  Y.  &  E.  R.  R.  Co.    179, 

180. 
Willbeam  v.  Ashton,  430. 
Wilkes  v.  Market  Co.  290. 
Willev  v.  Portsmouth,  689. 
Williams  v.  Archer,  623,  643. 
Williams  v.  Barton,  699. 
Williams  v.  Clinton,  689. 
Williams  v.  Esling,  665. 
Williams  v.  Jones,  235. 
Williamson  v.  Barrett,  787. 
Willoughby  v.  Backhouse,  103. 
Wills  v.  Abernethy,  584. 
Wilson  v.  Conine,  571. 
Wilson  v.  Davis,  523. 
Wilson  v.  Lancashire  &  York  Rail.  Co. 

180,  316. 
Wilson  v.  Mathews,  602. 
Wilson  v.  New  Castle  &  Ber.   R.   Co. 

180. 
Wood  v.  Bell,  649. 
Wood  v.  Brainerd,  587. 
Woodward  v.  Thacher,  560. 
Worms  v.  Storey,  191. 
Worthington  v.  Warrington,  64. 
Wright  v.  Delafield,  763. 

Yates  v.  Mullin,  608. 
Yates  v.  Fassett,  586. 
Yates  v.  Whyte,  676,  677  n. 
Young  v.  Spencer,  458. 
Young  v.  Willett,  652,  653. 


SELECTED    CASES 


MEASURE    OF    DAMAGES 


REAL  ESTATE. 


Damages  for  Breach  of  Contracts  to  Convey  Real  Estate  or 
Interests  therein;  for  Breach  of  Covenants  est  Deeds,  and 
in  Actions  of  Ejectment. 


[1770.]  GOODTITLE  V.  TOMBS  (3  Wils.  118). 

After  judgment  in  ejectment,  the  mesne  profits  may  be  recovered  in  an  action  of  tres- 
pass, but  are  not  the  necessary  limit  of  recovery. 

The  plaintiff  Goodtitle,  on  the  demise  of  his  lessor,  who  was 
tenant  in  common  of  the  lands  in  question,  with  the  now  defendant 
Tombs,  recovered  judgment  and  possession  in  ejectment  against  a 
casual  ejector  by  default,  and  afterwards  brought  this  action  of  tres- 
pass, for  the  recovery  of  damages  sustained  by  being  kept  out  of 
possession  by  his  companion  Tombs,  from  the  time  of  the  demise 
laid  in  the  declaration  in  ejectment,  until  the  time  of  the  execution 
of  the  writ  of  possession.  Upon  the  general  issue  pleaded,  there  was 
a  verdict  for  the  plaintiff,  damages  15£.,  and  40s.  costs,  subject  to  the 
opinion  of  the  court  upon  this  question,  viz.  :  Whether  one  tenant  in 
common  can  maintain  this  action  against  the  other,  to  recover  dam- 
ages for  the  expulsion  and  mesne  profits. 

Wtlmot,  Chief  Justice. — Before  the  time  of  Hen.  VII,  plaintiffs 
in  ejectment  did  not  recover  the  term  ;  but  until  about  that  time,  the 
mesne  profits  were  the  measure  of  damages.  I  brush  out  of  my  mind 
all  fiction  in  an  ejectment,  the  nominal  plaintiff  and  nominal  defend- 
ant, the  casual  ejector,  the  dramatis  personal  or  adores  falulie,  and 
consider  the  recovery  by  default,  or  after  a  verdict  as  the  same  thing, 
viz. :  a  recovery  by  the  lessor  of  the  plaintiff,  of  his  term  against  the 
l 


a  REAL  ESTATE. 

tenant  in  the  actual  wrongful  possession  of  the  land.  By  the  old  law 
and  practice  in  an  action  of  ejectment  (as  I  before  said)  you  re- 
covered nothing  but  damages,  the  measure  whereof  was  the  mesne 
profits  ;  no  term  was  recovered  ;  but  when  it  became  established  that 
the  term  should  be  recovered,  the  ejectment  was  licked  into  the  form 
of  a  real  action  ;  the  proceeding  was  in  rem,  and  the  thing  itself, 
the  term,  only  was  recovered,  and  nominal  damages,  but  not  the 
mesne  profits ;  whereupon  this  other  mode  of  recovering  the  mesne 
profits  in  an  action  of  trespass  was  introduced  and  grafted  upon  the 
present  fiction  of  ejectment ;  and  I  take  it,  that  the  present  fiction  is 
put  in  the  place  of  the  ejectment  at  common  law,  which  was  indeed 
a  true  and  not  a  fictitious  action,  and  in  which  the  mesne  profits  only, 
and  not  the  term,  were  recovered,  for  it  was  no  other  than  a  mere 
action  of  trespass.  You  have  turned  me  out  of  possession,  and  kept 
me  out  ever  since  the  demise  laid  in  the  declaration,  therefore  I  de- 
sire to  be  paid  the  damages  to  the  value  of  the  mesne  profits  which  I 
lost  thereby  ;  this  is  just  and  reasonable  (see  Aslin  and  Parkin,  2 
Burr.  66$). 

Gould,  Justice. — It  must  be  taken  for  granted  in  this  case,  that 
there  was  an  actual  ouster,  and  that  the  defendant  kept  him  out  from 
the  time  of  the  demise  till  the  judgment  in  the  ejectment ;  the 
plaintiff  in  this  case  is  not  confined  to  the  very  mesne  profits  only, 
but  he  may  recover  for  his  trouble,  &c.  I  have  known  four  times 
the  value  of  the  mesne  profits  given  by  a  jury  in  this  sort  of  action 
of  trespass;  if  it  were  not  to  be  so  sometimes,  complete  justice  could 
not  be  done  to  the  party  injured.  This  action  may  be  brought  either 
in  the  name  of  the  nominal  plaintiff  in  the  ejectment,  or  by  his  lessor ; 
it  follows  the  ejectment  as  a  necessary  consequence.  The  judgment 
in  ejectment  by  default  is  of  the  very  same  effect  in  this  case  as  if  it 
had  been  after  a  verdict ;  and  the  court  will  intend  everything  pos- 
sible against  the  defendant,  that  there  was  an  actual  ouster,  if  that 
were  necessary  in  this  case ;  but  I  think  proof  of  the  judgment  in 
ejectment,  and  the  writ  of  possession  executed,  was  sufficient  in  this 
case  to  warrant  a  verdict  for  the  mesne  profits. 

Chief  Justice  Wilmot. — Damages  are  not  confined  to  the  mere 
rent  of  the  premises  ;  but  the  jury  may  give  more,  if  they  please,  as 
my  brother  Gould  hath  truly  observed. 

Judgment  for  the  plaintiff.  Absent,  Lord  Commissioner  Bato- 
urst,  in  Chanc. 


FLUREAU  v.  THORNHILL.  3 

[1776.]  Flureau  v.  Thornhill  (2  W.  Bl.  1078). 

On  a  contract  for  the  purchase  of  real  estate,  if  the  title  prove  bad,  and  the  vendor  i3 
without  fraud  unable  to  make  a  good  one,  the  purchaser  is  not  entitled  to  damages 
for  the  loss  of  his  bargain. 

On  looking  into  the  title,  the  defendant  could  not  make  it  out ; 
-but  offered  the  plaintiff  his  election,  either  to  take  the  title  with  all 
its  faults,  or  to  receive  back  his  deposit  with  interest  and  costs.  But 
the  plaintiff  insisted  on  a  farther  sum  for  damages  in  the  loss  of  so 
good  a  bargain  ;  and  his  attorney  swore,  he  believed  the  plaintiff  had 
been  a  loser  by  selling  out  of  the  stocks  to  pay  the  purchase  money, 
and  their  subsequent  rise  between  the  3d  and  the  10th  of  November ; 
but  named  no  particular  sum.  Evidence  was  given  by  the  defendant, 
that  the  bargain  was  by  no  means  advantageous,  all  circumstances 
considered  ;  and  the  auctioneer  proved  that  he  had  orders  to  let  the 
lot  go  for  250/.  The  defendant  had  paid  the  deposit  and  interest, 
being  54/.  15s.  Qd.,  into  court,  but  the  jury  gave  a  verdict,  contrary 
to  the  dirctions  of  De  Grey,  Chief  Justice,  for  74:1.  15s.  Gel.,  allowing 
20/.  for  damages. 

Davy  moved  for  a  new  trial,  against  which  Glyn  showed  cause  ; 
and  by 

De  Grey,  Chief  Justice. — I  think  the  verdict  wrong  in  point  of 
•law.  Upon  a  contract  for  a  purchase,  if  the  title  proves  bad,  and  the 
vendor  is,  without  fraud,  incapable  of  making  a  good  one,  I  do  not 
think  that  the  purchaser  can  be  entitled  to  any  damages  for  the  fan- 
cied goodness  of  the  bargain,  which  he  supposes  he  has  lost. 

Gotjld,  Justice,  of  the  same  opinion. 

Blackstone,  Justice,  of  the  same  opinion. — These  contracts  are 
merely  upon  condition,  frequently  expressed,  but  always  implied,  that 
the  vendor  has  a  good  title.  If  he  has  not,  the  return  of  the  deposit 
with  interest  and  costs  is  all  that  can  be  expected.  For  curiosity,  I 
have  examined  the  prints  for  the  price  of  stock  on  the  last  3d  of  No- 
vember, when  3  per  cents  sold  for  87|-.  About  310/.  must  therefore 
have  been  sold  to  raise  270/.  And  if  it  costs  20/.  to  replace  this  stock 
a  week  afterwards  (as  the  verdict  supposes)  the  stocks  must  have  risen 
near  7  per  cent,  in  that  period,  whereas  in  fact  there  was  no  difference 
in  the  price.  Not  that  it  is  material,  for  the  plaintiff  had  a  chance  of 
gaining  as  well  as  losing  by  a  fluctuation  of  the  price. 

Nares,  Justice,  hesitated  at  granting  a  new  trial ;  but  next  morn- 
ing declared  that  he  concurred  with  the  other  judges. 

Rule  absolute  for  a  new  trial,  paying  the  costs. 


4  REAL  ESTATE. 

[1805.]      Staats  v.  Ten  Eyck's  Ex'rs  (3  Caines,  111). 

Under  a  covenant  of  ownership,  seizin,  power  to  sell,  and  for  peaceable  enjoyment,  the- 
vendee,  if  evicted,  can  recover  the  purchase  money,  with  interest  for  so  long  time 
as  he  pays  mesne  profits;  also,  the  costs  of  the  ejectment  that  may  be  brought 
against  him,  including  reasonable  counsel  fees,*  but  not  the  costs  of  the  action  for 
mesne  profits. 

On  the  Tth  of  January,  1793,  the  testator  Barent  Ten  Eyck,  by 
indenture  of  release,  in  consideration  of  700£.,  granted,  bargained  and 
sold  to  the  plaintiff  and  one  Dudley  Walsh,  in  fee,  two  lots  of  ground 
in  the  city  of  Albany,  covenanting  "  That  he,  the  grantor,  was  the 
true  and  lawful  owner;  that  he  was  lawfully  and  rightfully  seized,  in 
his  own  right,  of  a  good  and  indefeasible  estate  of  inheritance  in  the 
premises  ;  that  he  had  full  power  to  sell  in  fee  simple,  and  that  the 
grantees  should  forever  peaceably  hold  and  enjoy  the  premises  with- 
out the  interruption  or  eviction  of  any  person  whatever,  lawfully 
claiming  the  same."  In  the  month  of  May  following,  Walsh,  for  a 
valuable  consideration,  conveyed  his  moiety  of  these  lots  to  Staats, 
who,  on  the  30th  of  October,  1802,  after  due  possession,  by  lease  and 
release,  granted  one  of  them  to  Margaret  China  in  fee,  and  covenanted 
to  warrant  and  defend  her  in  the  peaceable  possession  thereof.  In 
August,  1803,  an  ejectment  was  brought  against  Margaret  China,  in 
which  a  judgment  was  obtained  for  a  moiety  of  the  lot  sold  to  her, 
execution  sued  out,  and  this  followed  by  a  recovery  in  an  action  for 
the  mesne  profits.  The  value  of  the  lot,  from  the  moiety  of  which 
Margaret  China  was  thus  evicted,  was,  at  the  time  of  the  sale  by  Ten 
Eyck,  300/.,  and  that  was  the  consideration  paid  for  it.  Margaret 
China  being  thus  evicted,  brought  her  action  against  the  plaintiff,  and 
recovered  for  the  moiety  she  had  lost. 

Upon  these  facts,  which  were  submitted  without  argument,  the 
following  questions  were  raised  for  the  determination  of  the  court : 
1st.  Whether  the  plaintiff  was  entitled,  under  the  covenants  in  Ten 
Eyck's  release,  to  recover  any  more  than  a  moiety  of  the  consideration 
money  paid  for  the  lot  from  which  Margaret  Claim  was  evicted.  2d. 
Whether  the  interest  of  that  consideration,  and  the  increased  value  of 
the  premises  from  the  date  of  the  deed  to  Mai'garet  Claim,  ought  to 
be  added.  3d.  Whether  the  plaintiff  was  entitled  to  any  retribution 
for  the  costs  and  damages  he  had  sustained  by  the  eviction  and  i*ecov- 
eries  before  mentioned. 

Kent,  Chief  Justice. — This  case  resolves  itself  into  these  two 
points  for  inquiry  :  1st.  Whether,  upon  the  covenants,  the  plaintiff 

*  See  note  at  the  end  of  this  case. 


STAATS  v.  TEN  EYCK'S  EXECUTORS.  5 

be  entitled  to  recover  the  value  of  the  moiety  of  one  lot  at  the  time 
of  eviction,  or  only  at  the  time  of  the  purchase,  and  to  be  ascertained 
by  the  consideration  given.  2d.  If  the  latter  be  the  rule  of  dam- 
ages, then,  whether  the  plaintiff  be  also  entitled  to  recover  interest 
upon  the  purchase  money,  and  the  costs  of  the  eviction. 

1.  There  are  two  covenants  contained  in  the  deed  ;  the  one,  that 
the  testator  was  seized  in  fee,  and  had  good  right  to  convey  ;  the 
other,  that  the  grantee  should  hold  the  land  free  from  any  lawful 
disturbance  or  eviction.  The  present  case  does  not  state  distinctly 
whether  the  eviction  was  founded  upon  an  absolute  title  to  a  moiety 
of  one  lot,  or  upon  some  temporary  incumbrance.  But  I  conclude 
from  the  manner  of  stating  the  questions,  and  so  I  shall  assume  the 
fact  to  be,  that  the  testator  was  not  seized  of  the  moiety  so  recovered 
when  he  made  the  conveyance,  and  had  no  right  to  convey  it.  The 
last  covenant  cannot  then,  in  this  case,  have  any  greater  operation 
than  the  first,  and  I  shall  consider  the  question  as  if  it  depended 
upon  the  first  covenant  merely. 

At  common  law,  upon  a  writ  of  warrantia  chartce,  the  demand- 
ant recovered  in  compensation  only  the  value  of  the  land  at  the  time 
of  the  warranty  made,  and  although  the  land  had  become  of  increased 
value  afterward,  by  the  discovery  of  a  mine,  or  by  buildings,  or  other- 
wise, yet  the  warrantor  was  not  to  render  in  value  according  to  the 
then  state  of  things,  but  as  the  land  was  when  the  warranty  was  made 
(Bro.  Abr.  tit.  Youcher,  pi.  69  ;  Ibid.  tit.  Recover  in  value,  pi.  59,  22 ; 
Yin.  144,  5,  6  ;  Tb.  pi.  1,  2,  9 ;  Ub.  pi.  1,  2,  3 ;  1  Reeves'  Eng.  Law, 
448).  This  recompense  in  value,  on  excambium,  as  it  was  anciently 
termed,  consisted  of  lands  of  the  warrantor,  or  which  his  heir  in- 
herited from  him,  of  equal  value  with  the  land  from  which  the  feoffee 
was  evicted  (Glanville,  b.  3,  c.  4 ;  Bracton,  384,  a,  b).  That  this 
was  the  ancient  and  uniform  rule  of  the  English  law,  is  a  point,  as  I 
apprehend,  not  to  be  questioned ;  yet,  in  the  early  ages  of  the  feudal 
law  on  the  continent,  as  it  appears  (Feudorum,  lib.  2,  tit.  25),  the 
lord  was  bound  to  recompense  his  vassal  on  eviction  with  other  lands 
equal  to  the  value  of  the  feud  at  the  time  of  eviction ;  "feudum 
resiituat  ejusdem  cestiinationis  quod  "  erat  tempore  rei  judicata.  But 
there  is  no  evidence  that  this  rule  ever  prevailed  in  England,  nor  do 
I  find,  in  any  case,  that  the  law  has  been  altered  since  the  introduc- 
tion of  personal  covenants,  to  the  disuse  of  the  ancient  warranty. 
These  covenants  have  been  deemed  preferable,  because  they  secure 
a  more  easy,  certain  and  effectual  recovery.  But  the  change  in  the 
remedy  did  not  affect  the  established  measure  of  compensation,  nor 
are  we  at  liberty  now  to  substitute  a  new  rule  of  damages  from  mere 


6  REAL  ESTATE. 

speculative  reasoning,  and  that,  too,  of  doubtful  solidity.  In  war- 
ranties upon  the  sale  of  chattels  the  law  is  the  same  as  upon  the  sale- 
of  lands,  and  the  buyer  recovers  back  only  the  original  price  (1  H. 
Black.  IT).  This  is  also  the  rule  in  Scotland  as  to  chattels  (1  Ersk.. 
206).  Our  law  preserves  in  all  its  branches  symmetry  and  harmony 
upon  this  subject.  In  the  modern  case  of  Flureau  v.  Thornhill  (2  W. 
Black.  L078),  the  court  of  King's  Bench  laid  down  this  doctrine,  that 
upon  a  contract  for  a  purchase  of  land,  if  the  title  prove  bad,  and 
the  vendor  is  without  fraud  incapable  of  making  a  good  one,  the 
purchaser  is  not  entitled  to  damages  for  the  fancied  goodness  of  his 
bargain.  The  return  of  the  deposit  money,  with  interest  and  costs, 
was  all  that  was  to  be  expected. 

Upon  the  sale  of  lands  the  purchaser  usually  examines  the  title 
for  himself,  and  in  case  of  good  faith  between  the  parties  (and  of 
such  cases  only  I  now  speak),  the  seller  discloses  his  proofs  and 
knowledge  of  the  title.  The  want  of  title  is,  therefore,  usually  a 
case  of  mutual  error,  and  it  would  be  ruinous  and  oppressive  to 
make  the  seller  respond  for  any  accidental  or  extraordinary  rise  in 
the  value  of  the  land.  Still  more  burdensome  would  the  rule  seem 
to  be  if  that  rise  was  owing  to  the  taste,  fortune  or  luxury  of  the 
purchaser.  No  man  could  venture  to  sell  an  acre  of  ground  to  a 
wealthy  purchaser,  without  the  hazard  of  absolute  ruin.  The  hard- 
ship of  this  doctrine  has  been  ably  exposed  by  Lord  Kaimes,  in  his 
examination  of  a  decision  in  the  Scotch  law,  that  the  vendor  was 
bound  to  pay  according  to  the  increased  value  of  the  land  (1  Kaimes' 
Eq.  284-303  ;  1  Ersk.  206). 

If  the  question  was  now  res  Integra,  and  we  were  in  search  of  a 
fit  rule  for  the  occasion,  I  know  of  none  less  exceptionable  than  the 
one  already  established.  By  the  civil  law,  the  seller  was  bound  to 
restore  the  value  of  the  subject  at  the  time  of  eviction,  but  if  the 
thing  had  been  from  any  cause  sunk  below  its  original  price,  the  sel- 
ler was  entitled  to  avail  himself  of  this,  and  pay  no  more  than  the 
thing  was  then  worth ;  for  the  Roman  law,  with  its  usual  and  ad- 
mirable equity,  made  the  rule  equal  and  impartial  in  its  operation. 
It  did  not  force  the  seller  to  bear  the  risk  of  the  rise  of  the  com- 
modity, without  also  taking  his  chance  of  its  fall  (Dig.  lib.  21,  tit. 
2,  1.  78 ;  Ibid.  1.  CG,  §  3  ;  Ibid.  1.  64,  §  1).  So  far  the  rule  in  that 
law  appeared  at  least  clear  and  consistent,  but  with  respect  to  bene- 
ficial improvements  made  by  the  purchaser,  the  decisions  in  the 
Code  and  Pandects  are  jarring  and  inconsistent  with  each  other,  and 
betray  evident  perplexity  on  this  difficult  question  (Dig.  lib.  19,  tit. 
1,  45,  §  1 ;    Code,  lib.  8,  tit.  45,  I,  q,  and  Perezius  thereon).     The 


STAATS  v.  TEN  EYCK'S  EXECUTORS.  7 

more  just  opinion  seems  to  be  that  the  claimant  himself,  and  not  the 
seller,  ought  to  pay  for  them,  for  nemo  debet  locupletarl  alien  a  j  ac- 
tum, and  this  rule  has,  according  to  Lord  Hardwicke,  been  several 
times  adopted  and  applied  by  the  English  Court  of  Chancery  (East 
In.  Com.  v.  Vincent,  2  Atk.  38).  While  on  this  question,  I  hope  it 
may  not  be  deemed  altogether  impertinent  to  observe  that  in  the 
late  digest  of  the  Hindu  law,  compiled  under  the  ausjnces  of  Sir 
William  Jones,  the  question  before  us  is  stated  and  solved  with  a 
precision  at  least  equal  to  that  in  the  Roman  Code,  and  it  is  in  exact 
conformity  with  the  English  law.  On  a  sale  declared  void  by  the 
judge  for  want  of  ownership,  the  seller  is  to  pay  the  price  to  the 
buyer ;  and  what  price  ?  asks  the  Hindu  commentator.  Is  it  the  price 
actually  received,  or  the  present  value  of  the  thing  ?  The  answer  is, 
the  price  for  which  it  was  sold  ;  the  price  agreed  on  at  the  time  of 
the  sale,  and  received  by  the  seller,  and  this  price  shall  be  recovered, 
although  the  value  may  have  been  diminished  (1  Colebrook's  Digest, 
478,  9).  Before  I  conclude  this  head,  I  ought  to  observe  that,  in  the 
present  case,  it  does  not  appear  that  any  beneficial  improvements 
have  been  made  upon  the  premises  since  the  purchase  by  the  plaint- 
iff, and  although  some  of  my  observations  have  been  more  general 
than  the  precise  facts  in  the  case  required,  yet  the  opinion  of  the 
court  is  not  intended  to  be  given  or  to  reach  beyond  the  case  be- 
fore us. 

2.  The  next  point  arising  in  this  case  is,  whether  the  plaintiff  is 
entitled  to  recover  interest  upon  the  purchase  money,  and  the  costs 
of  eviction.  It  is  evident  that  originally  the  vendee  recovered  only 
what  was  deemed  equivalent  to  the  purchase  money,  without  inter- 
est ;  for  he  recovered  other  lands  equal  only  in  value  to  the  lands 
sold,  at  the  time  of  the  sale.  The  rule  would  have  been  the  same  at 
this  day,  had  not  the  action  for  mesne  profits  been  introduced,  which 
takes  away  from  the  purchaser  the  intermediate  profits  of  the  land. 
As  long  as  he  was  permitted  to  reap  the  rents  and  profits,  they 
formed  a  just  compensation  for  the  use  of  this  money.  Whether 
the  action  for  mesne  profits  has  not  been  carried  too  far  in  our  law, 
by  extending  it  to  all  cases,  instead  of  confining  it  to  a  mala  fide 
possession,  it  is  now  too  late  to  inquire.  I  should  have  strong  doubts 
at  least,  upon  the  present  rule,  if  the  question  was  new,  but  consid- 
ering it  as  the  established  rule  that  the  action  for  mesne  profits  lies 
generally,  I  am  of  opinion  that  the  seller  is  as  generally  bound  to 
answer  for  the  interest  of  the  purchase  money,  and  that  the  interest 
ought  to  be  commensurate,  in  point  of  time,  with  the  legal  claim  to 
the  mesne  profits.     This  right  to  interest  rests  on  very  plain  prin- 


S  REAL   ESTATE. 

ciples.  The  vendor  has  the  use  of  the  purchase  money,  and  the 
vendee  loses  the  equivalent  by  the  loss  of  the  mesne  profits.  The 
interest  ought  to  commence  from  the  time  of  the  loss  of  the  mesne 
profits.  That  time  is  not  specifically  stated  in  the  present  case,  and 
the  presumption  is,  that  they  were  recovered  from  the  date  of  the 
plaintiffs  purchase,  and  from  that  time,  I  think,  the  interest  ought 
to  be  calculated  on  the  consideration  sum. 

As  to  the  costs  of  suit  attending  the  eviction  stated  in  the  case, 
it  is  very  char  that  the  defendants  are  responsible  under  the  cove- 
nant, for  the  testator  was  bound  to  defend  and  protect  the  plaintiff 
and  his  assigns  in  the  title  he  had  conveyed.  At  common  law,  he 
might  have  been  vouched  to  come  in,  and  been  substituted  as  a  real 
defendant  in  the  suit.  But  the  defendants  are  not  answerable  for 
the  costs  of  the  suit  for  mesne  profits,  as  there  the  testator  was  not 
bound  to  defend. 

My  opinion  accordingly  is,  that  the  plaintiff  in  the  present  case 
is  entitled  to  recover  the  consideration  paid  for  the  moiety  of  the  lot 
evicted,  together  with  interest  thereon  from  the  date  of  the  purchase, 
and  the  costs  of  suit  in  ejectment  for  the  recovery  of  the  same. 

To  find  a  proper  rule  of  damage,  in  a  case  like  this,  is  a  work  of 
some  difficulty ;  no  one  will  be  entirely  free  from  objection,  or  not 
at  times  work  injustice.  To  refund  the  consideration,  even  with 
interest,  may  be  a  very  inadequate  compensation  when  the  property 
is  greatly  enhanced  in  value,  and  when  the  same  money  might  have 
been  laid  out  to  equal  advantage  elsewhere.  Yet  to  make  this  in- 
creased value  the  criterion  where  there  has  been  no  fraud,  may  also 
be  attended  with  injustice,  if  not  ruin.  A  piece  of  land  is  bought 
solely  for  the  purposes  of  agriculture ;  by  some  unforeseen  turn  of 
fortune,  it  becomes  the  site  of  a  populous  city,  after  which  an  evic- 
tion takes  place.  Every  one  must  perceive  the  injustice  of  calling 
on  a  bona  fide  vendor  to  refund  its  present  value,  and  that  few 
fortunes  could  bear  the  demand.  Who  for  the  sake  of  one  hundred 
pounds  would  assume  the  hazard  of  repaying  as  many  thousands,  to 
which  value  the  property  might  rise  by  causes  not  foreseen  by  either 
party,  and  which  increase  in  worth  would  confer  no  right  on  the 
grantor  to  demand  a  further  sum  of  the  grantee.  The  safest  general 
rule  in  all  actions  on  contract  is  to  limit  the  recovery  as  much  as 
possible  to  an  indemnity  for  the  actual  injury  sustained,  without  re- 
gard to  the  profits  which  the  plaintiff  has  failed  to  make,  unless  it 
shall  clearly  appear  from  the  agreement  that  the  acquisition  of  cer- 
tain profits  depended  on  the  defendant's  punctual  performance,  and 
that  he  had  assumed  to  make  good  such  a  loss  also.     To  prevent  an 


STAATS  v.  TEN   EYCK'S   EXECUTORS.  9 

immoderate  assessment  of  damages  when  no  fraud  had  been  practiced, 
Justinian  directed  that  the  thing  which  was  the  object  of  contract 
should  never  be  valued  at  more  than  double  its  cost.  This  rule  a 
writer  on  civil  law  applies  to  a  case  like  the  one  before  us ;  that  is, 
to  the  purchase  of  land  which  had  become  of  four  times  its  original 
value  when  an  eviction  took  place ;  but,  according  to  this  rule,  the 
party  could  not  recover  more  than  twice  the  sum  he  had  paid.  This 
law  is  considered  by  Pothier  as  arbitrary,  so  far  as  it  confines  the  re- 
duction of  the  damages  to  precisely  double  the  value  of  the  thing, 
and  is  not  binding  in  France  ;  but  its  principle,  which  does  not  allow 
an  innocent  party  to  be  rendered  liable  beyond  the  sum  on  which  he 
may  reasonably  have  calculated,  being  founded  in  natural  law  and 
equity,  ought,  in  his  opinion,  to  be  followed,  and  care  taken  that 
damages  in  the  cases  be  not  excessive.  Rather  than  adhere  to  the 
rule  of  Justinian,  or  leave  the  matter  to  the  opinion  of  a  jury  as  to 
what  may  or  may  not  be  excessive,  some  more  certain  standard 
should  be  fixed  on.  However  inadequate  a  return  of  the  purchase 
money  must  be  in  many  cases,  it  is  the  safest  measure  that  can  be 
followed  as  a  general  rule.  This  is  all  that  one  party  has  received, 
and  all  the  actual  injury  occasioned  by  the  other.  I  speak  now  of  a 
case,  and  such  is  the  present,  where  the  grantee  has  not  improved 
the  property  by  buildings  or  otherwise,  but  where  the  land  has  risen 
in  value  from  extrinsic  causes.  What  may  be  a  proper  course  when 
dwelling  houses  or  other  buildings  and  improvements  have  been 
erected,  we  are  not  now  determining.  "Why  should  a  purchaser  of 
land  recover  more  than  he  has  paid,  any  more  than  the  vendee  of  a 
house  or  a  ship  ?  If  these  articles  rise  in  value,  the  vendors  would 
hardly,  if  there  be  no  fraud,  be  liable  to  damages  beyond  the  prices 
they  had  received,  with  interest  and  costs,  unless  the  plaintiffs  could 
show  some  further  actual  injury  which  they  had  sustained  in  conse- 
quence of  the  bargain.  The  English  books  afford  but  little  light  on 
this  point,  although  it  is  understood  to  be  the  rule  in  Great  Britain 
to  give  only  the  consideration  of  the  deed.  The  only  thing  to  be 
found  anyways  relating  to  the  subject,  is  in  the  Year  Books  in 
Hilary  Term  (6  Edward  II,  part  1,  187).  It  is  there  said,  that  in  a 
writ  of  dower,  after  the  lands  had  been  improved  by  the  feoffee,  they 
shall  be  extended  or  set  off  to  the  widow,  according  to  the  value  at 
the  time  of  alienation ;  and  the  reason  assigned  by  Hargrave  in  his 
notes  on  Coke  on  Littleton,  which  is  not,  however,  found  in  the 
Tear  Book,  is  "  that  the  heir,  not  being  bound  to  warrant,  except  ac- 
cording to  the  value  of  the  land  at  the  time  of  the  feoffment,  it  is 
unreasonable  the  widow  should  recover  more  of  the  feoffee  than  he 


10  REAL   ESTATE. 

could,  in  ease  of  evict  inn.  of  the  feoffor.''  In  Connecticut,  on  the 
contrary,  damages  are  ascertained  by  the  value  at  the  time  of  evic- 
tion, because  of  laud's  increasing  worth,  which  is  the  very  reason 
perhaps  it  should  be  otherwise.  And  although  the  English  practice 
be  adverted  to  1>\  the  court  in  giving  its  opinion,  it  is  supposed  to 
be  founded  on  the  permanent  value  of  their  lands;  but  when  we 
recollect  thai  this  has  been  the  rule  in  Great  Britain,  at  least  from 
the  commencement  of  the  fourteenth  century,  since  which  time 
lands  have  greatly  advanced  in  price,  we  must  attribute  its  origin  to 
sonic  other  cause,  probably  to  its  intrinsic  justice  and  merit.  Even  in 
Connecticut  (  Kirhv.  3),  the  rule  applies  only  to  actions  on  covenant  of 
warrant  v,  and  probably  not  to  those  on  covenant  of  seizin,  because  in 
the  latter  case  it  is  supposed  the  party  may  immediately  acquaint 
himself  with  the  strength  of  his  title,  and  bring  his  action  as  soon  as 
he  discovers  it  is  defective.  This  reason  is  not  very  satisfactory,  for 
with  all  his  diligence  a  long  time  may  elapse  before  his  title  is  called 
in  question,  or  doubts  or  suspicions  raised  about  its  validity. 

Without  saying,  then,  what  ought  to  be  the  rule  where  the  estate 
has  been  improved  after  purchase,  my  opinion  is,  that  where  there 
has  been  no  fraud,  and  none  is  alleged  here,  the  party  evicted  can 
recover  only  the  sum  paid,  with  interest  from  the  time  of  payment, 
where,  as  is  also  the  case  here,  the  purchaser  derived  no  benefit  from 
the  property,  owing  to  a  defective  title.  The  plaintiff  must  also  be 
reimbursed  the  costs  sustained  by  the  action  of  ejectment.  It  was 
his  duty  to  defend  the  property,  and  the  costs  to  which  he  has  been 
exposed  being  an  actual,  not  an  imaginary  loss,  arising  from  the  de- 
fendant's want  of  title,  he  ought  to  be  made  whole.  In  costs  are 
include! I  reasonable  fees  of  counsel,*  as  well  as  those  which  are  tax- 
able. If  a  grantee  be  desirous  of  receiving  the  value  of  land  at  the 
time  of  eviction,  he  may  by  apt  covenants  in  the  deed,  if  a  grantor 
will  consent,  secure  such  benefit  to  himself. 

The  other  judges  concurred. 

*  But  the  courts  are  disinclined  of  late  years  to  allow  counsel  fees  as  an  express 
item  of  damage ;  and  although,  in  this  class  of  cases,  they  are  allowed  in  some  of  the 
Stales  (Robertson  v.  Lemon,  2  Busn  [  Ky.|  801 ;  Keeler  v.  Wood,  30  Vt.  242),  this  is  not 
the  universal  rule  (White  v.  Clark,  2  Swan  [Tenn.]  230;  Leffingwell  v.  Elliott,  10  Tick. 
[Mass.]  2041 


PRESCOTT  v.   TRUEMAN.  11 

[1808.]  Prescott  v.  Trueman  (4  Mass.  927). 

A  paramount  right  is  an  incumbrance,  and  if  the  plaintiff  have,  at  a  fair  price,  ex- 
tinguished the  incumbrance,  such  price  shall,  in  an  action  on  a  covenant  against 
incumbrances,  be  the  measure  of  damages ;  if  he  have  not  removed  the  incumbrance, 
he  shall  have  nominal  damages  only. 

This  was  an  action  of  covenant  broken.  The  declaration  con- 
tained several  counts,  in  the  fourth  of  which  the  plaintiff  alleges 
that  the  defendant  by  his  deed  duly  executed,  dated  September  26th, 
1800,  in  consideration  of  three  hundred  dollars  paid  him  by  the 
plaintiff,  granted  and  sold  to  the  plaintiff  in  fee  simple  a  certain 
messuage  and  lands  therein  described  ;  and,  among  other  things, 
covenanted  that  the  granted  premises  were  free  of  all  incumbrances. 
The  plaintiff  then  sets  forth  that  before  and  until  the  19th  day  of 
March,  1795,  one  Thomas  Symmes  was  seized  in  fee  of  the  said 
messuage  and  lands,  having  a  good  and  perfect  title  to  the  same,  and 
being  so  seized,  by  his  deed  of  that  date,  for  a  valuable  consideration, 
conveyed  the  same  to  one  Thomas  Russell  in  fee,  and  the  said  Rus- 
sell, on  the  8th  day  of  April,  1796,  died  intestate,  seized  of  the  right 
to  the  same  premises,  from  whom  the  said  right  descended  and  came 
to  his  children  and  heirs ;  and  the  plaintiff  further  avers  that,  at  the 
date  of  the  defendant's  said  deed,  he  had  not,  nor  hath  he  at  any 
time  had,  any  entry,  right  or  title  to  the  premises  aforesaid,  but  by 
and  under  the  said  Symmes,  who  thereof  disseized  the  said  Russell 
on  the  4th  day  of  August,  1795 ;  so  that  the  said  right  of  the  said 
children  and  heirs  of  the  said  Russell,  to  have  the  said  premises  as 
aforesaid,  was  at  the  time  the  defendant  executed  his  deed  aforesaid, 
and  still  continues  to  be,  an  incumbrance  upon  the  premises  afore- 
said ;  and,  therefore,  that  the  same  were  not  then  free  of  all  incum- 
brances :  and  so  the  defendant  his  covenant  aforesaid  hath  not  kept, 
but  hath  broken  the  same. 

To  this  count  the  defendant  demurred  generally,  and  the  plaintiff 
joined  in  demurrer. 

Parsons,  Chief  Justice. — The  action  is  covenant  broken,  and 
comes  before  us  on  a  general  demurrer  to  the  fourth  count.  In  this 
count,  the  plaintiff  alleges  that  Trueman,  on  the  26th  day  of  Sep- 
tember, 1800,  being  then  seized  in  fee  of  certain  lands  in  Westford, 
which  seizin  he  acquired  by  a  conveyance  from  Thomas  Symmes, 
who  was  in  by  disseizin,  by  his  deed  of  that  date  granted  and  sold 
the  same  to  the  plaintiff  in  fee  ;  and  covenanted  that  the  said  lands 
were  free  from  all  incumbrances.  The  breach  alleged  is  that  the 
heirs  of  the  disseizee  had,  at  the  time  when  the  deed  was  executed,  a 
paramount  right  to  the  same  lands. 


12  REAL   ESTATE. 

All  the  facts  contained  in  this  count,  which  are  well  pleaded,  are 
confessed  by  the  demurrer.  And  the  question  is,  whether  this  par- 
amount right  to  the  lands  in  the  heirs  of  the  disseizee,  at  the  time 
of  the  grant  to  the  plaintiff,  is  an  incumbrance  on  the  land  granted. 

No  authority  in  point  on  either  side  has  been  produced ;  and  the 
question  must  be  decided  on  general  principles.  On  these  principles 
we  are  of  opinion  that  every  right  to,  or  interest  in  the  land  granted, 
to  the  diminution  of  the  value  of  the  land,  but  consistent  with  the 
passing  of  the  fee  of  it  by  the  conveyance,  must  be  deemed  in  law 
an  incumbrance.  We  say,  consistent  with  the  passing  of  the  fee  of 
the  land  by  the  conveyance,  because  if  nothing  passed  by  the  deed, 
the  grantee  cannot  hold  the  estate  under  the  grantor.  Thus  a  right 
to  an  easement  of  any  kind  in  the  land  is  an  incumbrance.  So  is  a 
mortgage.  So  also  is  a  claim  of  dower,  which  may  partially  defeat 
the  plaintiff's  title,  by  taking  a  freehold  in  one-third  out  of  it.  And 
for  the  same  reason,  a  paramount  right,  which  may  wholly  defeat  the 
plaintiff's  title,  is  an  incumbrance.  It  is  a  weight  on  his  land  which 
must  lessen  the  value  of  it. 

It  may  be  objected,  that  if  a  paramount  right  is  an  incumbrance 
for  which  the  grantee  may  recover  damages,  it  would  operate  un- 
reasonably and  unjustly  as  between  the  parties  to  the  covenant. 
For  after  the  grantor  had  paid  for  the  value  of  the  land  in  damages, 
the  grantee  would  still  hold  it,  and  might  never  be  disturbed  by  a 
dormant  title.  Or,  if  he  should  be  afterwards  evicted,  the  grantor 
would  again  be  liable  to  the  grantee  on  the  warranty  in  consequence 
of  the  eviction. 

If  these  inconveniences  would  follow  from  considering  a  par- 
amount right  as  an  incumbrance,  the  objection  would  have  great 
weight,  not  only  on  this  point,  but  also  in  cases  of  mortgages  and 
claims  of  dower,  which,  it  is  not  disputed,  are  incumbrances.  But, 
~by  duly  attending  to  the  rule  in  assessing  damages,  the  objection  will 
vanish.  Where  a  subsisting  easement  is  alleged  as  the  incumbrance, 
the  injury  arising  from  the  easement,  or  the  fair  and  reasonable 
price  paid  by  the  grantee  to  extinguish  it,  of  which  the  jury  will 
judge,  is  the  measure  of  the  damages.  If  a  mortgage,  which  is  a 
collateral  security,  is  the  incumbrance,  the  grantee  can  recover  only 
nominal  damages,  unless  he  has  removed  it,  because  the  mortgagee 
can  compel  the  mortgagor  to  pay  the  debt  by  suing  the  principal 
security  ;  but  if  the  grantee  has  paid  it,  so  that  the  mortgagor  is  dis- 
charged, the  sum  secured  by  the  mortgage  is  the  measure  of  dam- 
ages.  If  a  right  to  dower  is  the  incumbrance  complained  of,  if  it  be 
not  extinguished  by  the  grantee,  he  can  recover  only  nominal  dam- 


PRE  SCOTT  v.  TRUEMAN.  13 

ages.  But  if  lie  has  extinguished  it,  the  jury  will  allow  him  in 
damages  the  fair  price  it  necessarily  cost  him.  For  if  this  right  be 
extinguished,  it  can  never  after  be  the  foundation  of  any  claim  on 
the  grantor. 

So  in  the  case  before  us,  if  the  plaintiff,  the  grantee,  has  not 
extinguished  the  paramount  right,  but  it  still  remains  against  his 
title,  he  shall  recover  nominal  damages  only,  for  the  reason  on 
which  the  objection  is  founded.  For  the  plaintiff  shall  not  recover 
the  value  of  the  land  against  the  grantor,  and  still  hold  the  land  on 
a  contingency  that  he  may  never  be  disturbed  in  his  possession. 
Neither  shall  the  grantor,  the  defendant,  after  having  once  paid  the 
value  of  the  land,  be  afterwards  called  on  by  the  plaintiff  on  a  sub- 
sequent eviction.  But  if  it  should  appear  to  the  jury,  who  may 
inquire  of  the  damages,  that  the  plaintiff  has,  at  a  just  and  reason- 
able price,  extinguished  this  title,  so  that  it  can  never  afterwards 
prejudice  the  grantor,  they  will  consider  this  price  as  the  measure  of 
damages. 

The  law  thus  settled  will  be  generally  convenient.  For  if  we 
are  mistaken  in  the  law,  the  grantee  can  have  no  remedy  on  the 
usual  covenants  in  our  deeds  of  conveyance,  until  he  is  evicted.  In 
the  mean  time  he  may  be  unwilling  to  make  improvements ;  and 
when  he  is  evicted,  the  grantor  may  be  unable  to  make  him  any 
compensation. 

The  covenant  of  seizin  is  not  broken,  for  it  is  admitted  that  the 
grantor  was  seized  ;  neither  is  the  covenant  of  a  right  to  convey 
broken,  for  a  man  seized  has  a  right  to  convey ;  and  on  the  warranty 
there  is  no  remedy,  until  after  eviction. 

In  English  deeds,  there  is  sometimes  inserted  a  covenant  that  the 
grantor  has  good  right  to  convey  an  indefeasible  estate  in  fee.  On 
this  covenant  only  nominal  damages  would  be  given,  until  the  estate 
conveyed  had  been  defeated,  or  the  right  to  defeat  it  had  been  ex- 
tinguished. This  covenant  is  not  usually,  if  ever,  introduced  into 
our  deeds  of  conveyance,  and  upon  the  construction  of  covenants 
against  incumbrances  is  unnecessary. 

In  adopting  this  construction,  we  have  not  been  governed  entirely 
by  arguments  db  inconveniently  but  have  used  the  language  of  these 
covenants  in  the  popular  sense  of  the  country,  and  consequently  in 
the  sense  in  which  it  is  generally  understood  by  the  parties  to  con- 
veyances. A  purchaser  from  one  who  is  seized  is  not  therefore 
obliged  to  wait  in  painful  suspense,  until  he  be  evicted,  before  he  can 
obtain  an  adequate  remedy ;  but  as  soon  as  he  can  extinguish  the 
incumbrance,  he  may  call  on  his  grantor  for  an  indemnity. 

Declaration  adjudged  good. 


14  REAL   ESTATE. 

[1809.]  PiTcnEit  v.  Livingston  (4  Johns.  1). 

In  an  action  for  the  breach  of  the  covenants  of  seizin  and  for  quiet  enjoyment,  the  pur- 
chaser cannot  recover  for  the  improvements  he  lias  made,  nor  for  the  increased 
value  of  the  land. 

This  was  an  action  of  covenant.  The  declaration  contained  two 
counts;  the  first  was  for  a  breach  of  the  covenant  of  seizin,  the  sec- 
ond for  a  breach  of  the  covenant  for  quiet  enjoyment,  contained  in  a 
deed  from  the  defendant  to  the  plaintiff,  dated  the  17th  June,  1801, 
for  certain  lands  in  Queensbury,  in  the  county  of  Washington.  The 
cause  was  tried  at  the  Washington  circuit,  before  Mr.  Justice 
Thompson,  and  a  verdict  taken  for  the  plaintiff,  for  $2,521  75. 
The  covenants  were  proved  to  have  been  broken,  and  two  questions 
were  raised  at  the  trial :  1.  Whether  the  plaintiff  was  entitled  to  re- 
cover interest  on  the  consideration  money  ;  2.  Whether  he  wTas  en- 
titled to  recover  damages  for  the  improvements  made  by  the  plaint- 
iff, and  for  the  increased  value  of  the  land. 

The  judge  was  in  favor  of  the  plaintiff  on  the  first  question  ;  but 
gave  no  opinion  on  the  second.  It  was  agreed  that  a  verdict  should 
be  taken  for  the  plaintiff ;  and  if  the  court  should  be  of  opinion 
that  the  plaintiff  was  not  entitled  to  interest,  that  then  the  sum  of 
$183  75  should  be  deducted  from  the  amount  of  the  verdict ;  and 
that  if  the  court  should  be  of  opinion  that  the  plaintiff  was  not  enti- 
tled to  recover  for  the  improvements,  then  the  further  sum  of  $925 
should  be  deducted  from  the  verdict ;  and  if  the  court  should  be  of 
opinion  that  the  plaintiff  was  not  entitled  to  recover  anything  for 
the  increased  value  of  the  land,  that  then  the  further  sum  of  $750 
should  be  deducted  from  the  verdict. 

Yan  Ness,  Justice. — Although  it  is  not  expressly  stated  in  the 
case,  I  shall  assume  the  fact  to  be,  that  the  declaration  contains  an 
averment  that  the  plaintiff  had  been  evicted,  in  consequence  of  a 
total  failure  of  the  title  derived  to  him  under  the  deed  from  the  de- 
fendant. This  fact  being  assumed,  there  is  no  difference  between 
the  present  case  and  that  of  Staats  v.  The  Executors  of  Ten  Eyck  (3 
Gaines,  111),  except  that,  in  this  case,  beneficial  improvements  have 
been  made  by  the  plaintiff  upon  the  property,  the  value  of  which  he 
contends  he  is  entitled  to  recover.  The  case  just  mentioned  is 
among  the  most  important  and  interesting  of  any  that  have  ever 
been  brought  before  this  court  for  decision  ;  and,  accordingly,  it  ap- 
pears to  have  received  the  most  deliberate  consideration.  I  not  only 
submit  to  the  authority  of  that  case,  but  I  take  this  occasion  to  ex- 
press my  perfect  acquiescence  in  the  reasons  upon  which  the  deter- 


PITCHER   v.   LIVINGSTON.  15 

urination  of  it  appears  to  have  proceeded.  The  covenants  upon 
which  the  breaches  were  assigned  in  that  case,  were  the  same  as  in 
the  present,  viz. :  the  covenant  of  seizin,  and  for  quiet  enjoyment. 
The  court  decided  that  the  damages,  which  the  plaintiff  was  entitled 
to  recover,  where  to  be  limited  to  the  consideration  expressed  in  the 
deed,  with  the  interest  thereon,  and  the  costs  of  suit  attending  the 
eviction.  But  in  addition  to  the  sum  which  the  plaintiff,  according 
to  this  rule,  would  recover,  he  contends  that  the  defendant  is  bound 
to  indemnify  him  for  the  loss  of  his  improvements.  These  are  esti- 
mated at  $925  ;  and  the  only  point  left  open  to  discussion  is,  whether 
he  has  a  legal  right  to  demand  this  sum. 

In  Staats  v.  The  Executors  of  Ten  Eyck,  the  court  determined 
that  the  plaintiff  was  not  entitled  to  recover  any  damages  on  account 
of  any  increased  value  of  the  land.  Here  a  distinction  is  attempted 
to  be  made  between  an  apjjreciation  of  the  land  itself,  and  that  ap- 
preciation of  it  which  is  produced  by  the  erection  of  buildings,  or 
the  labor  bestowed  upon  it  in  clearing  and  cultivating :  a  very  nice 
and,  as  I  apprehend,  a  speculative  distinction,  to  which  it  would  be 
difficult,  if  not  in  most  cases  impossible,  to  give  any  practical  effect 
without  danger  of  the  most  flagrant  injustice.  The  reasoning  of  the 
judges,  whose  opinions  are  reported  in  the  case  alluded  to,  goes  very 
far,  if  not  conclusively,  to  prove  that  such  a  distinction  is  utterly 
without  foundation.  The  admission  that  it  might  possibly  exist,  has 
probably  given  rise  to  this  action,  which  otherwise,  I  believe,  would 
not,  after  that  decision,  have  been  brought.  One,  and  perhaps  the 
principal,  reason  why  the  increased  value  of  the  land  itself  cannot 
be  recovered,  is  because  the  covenant  cannot  be  construed  to  extend 
to  anything  beyond  the  subject-matter  of  it,  that  is,  the  land,  and 
not  to  the  increased  value  of  it  subsequently  arising  from  causes  not 
existing  when  the  covenant  was  entered  into.  For  the  same  reason, 
the  covenantor  ought  not  to  recover  for  the  improvements ;  for 
these  are  no  more  the  subject-matter  of  the  contract  between  the 
parties,  than  the  increased  value  of  the  land.  The  doctrine  con- 
tended for  by  the  plaintiff's  counsel  is,  that  the  damages  sustained 
by  the  covenantee  at  the  time  of  the  eviction,  ought  to  be  the  meas- 
ure of  compensation.  Most  clearly  then,  the  increased  value  of  the 
land  is  as  much  within  the  reason  of  this  rule,  as  the  improvements ; 
and  upon  the  same  principle  that  the  covenantee  is  entitled  to  the 
one,  he  is  to  the  other. 

But  if  the  value  at  the  time  of  eviction  is  to  be  the  measure  of 
damages,  upon  what  principle  is  the  consideration  and  interest,  as 
such,  recoverable  in  addition  to  the  improvements  ?     These  must  be 


16  REAL   ESTATE. 

laid  out  of  view  ;  and  the  then  value  be  ascertained  without  refer- 
ence to  them.  Besides  if,  in  determining  the  rule  of  damages,  the 
increase  of  value  is  to  be  taken  into  view,  by  parity  of  reasoning,  it 
would  be  proper,  and  what  would  be  required  by  a  just  reciprocity, 
to  take  into  consideration  any  contingent  diminution  of  value  (Ersk. 
Inst.  200).  But  this  has  never  been  heard  of  nor  pretended.  No 
such  principle  is  to  be  found  in  the  common  law,  notwithstanding 
these  covenants  have  been  in  use  upwards  of  two  hundred  years.  I 
think  this  circumstance  affords  an  argument  against  the  measure  of 
damages  insisted  upon  by  the  plaintiff,  and  which,  of  itself,  is  nearly 
decisive,  that  the  rule  is  without  legal  foundation. 

In  illustration  of  my  opinion  on  this  part  of  the  argument,  I  will 
state  a  case.  A.  gives  a  conveyance,  containing  covenants  of  seizin 
and  for  quiet  enjoyment,  of  a  house  and  lot.  The  house  constitutes 
two-thirds  of  the  whole  value.  The  house  is  afterwards  burnt. 
Then  the  grantee  is  evicted  for  a  failure  of  the  grantor's  title.  He 
then  resorts  to  both  his  covenants,  which  of  course  are  broken,  for 
indemnity.  What  would  be  the  measure  of  damages  %  the  value  of 
the  lot,  at  the  time  of  eviction,  being  one-third  of  what  the  whole 
cost  him ;  or  the  value,  as  ascertained  and  agreed  upon  by  the  deed 
itself  ?  No  doubt  the  latter.  "Whenever  the  grantee's  title  has 
proved  to  be  entirely  defective,  and  there  is  an  eviction  consequent 
thereon,  the  grantee  has  a  right  to  rescind  the  contract,  and  then,  as 
in  other  cases  depending  on  the  same  principle,  he  recovers  back, 
upon  his  covenants,  what  he  has  paid,  with  the  interest  (Fielden  v. 
Starkin,  1  II.  Bl.  17 ;  Flureau  v.  Thornhill,  2  W.  Bl.  1078). 

In  the  case  just  put,  I  have  supposed  that  both  the  covenants  of 
seizin  and  for  quiet  enjoyment  were  broken,  and  that  breaches  for 
both  were  duly  assigned ;  and  I  have  shown  that  if  the  value  of  the 
property  at  the  time  of  eviction  is  to  be  the  measure  of  damages,  it 
necessarily  follows  that  such  diminished  value  is  all  which  ought  to 
be  recovered.  It  is  conceded  that,  upon  the  covenant  of  seizin  only, 
the  recovery  is  to  be  confined  to  the  consideration  and  interest.  On 
the  covenant  for  quiet  enjoyment,  therefore,  the  plaintiff  must  rely 
to  recover  compensation  for  his  improvements.  Let  us  then  exam- 
ine whether,  consistently  with  certain  fixed  legal  principles,  the 
covenantee  can  recover  a  greater  sum  of  damages  in  any  case  un- 
der the  covenant  for  quiet  enjoyment,  than  under  the  covenant  of 
seizin. 

An  eviction  must  be  shown  before  a  suit  can  be  maintained  on 
the  former  covenant.  Not  so,  however,  as  to  the  latter ;  for  that  is 
broken,  if  the  grantor  has  no  title,  the  moment  the  deed  is  delivered  ; 


PITCHER   v.    LIVINGSTON.  17 

and  the  grantee  has  an  immediate  right  of  action.*  Whenever  the 
eviction  is  occasioned  by  a  total  want  of  title  in  the  grantor,  then 
both  the  covenants  of  seizin  and  for  quiet  enjoyment  are  equally 
broken ;  and  the  grantee  has  his  remedy  on  both.  If  he  proceeds 
upon  the  first,  he  shall  recover  the  consideration  expressed  in  the 
deed,  and  the  interest.  But  if  he  proceeds  upon  the  last,  it  is  said 
he  shall  recover  according  to  the  value  at  the  time  of  eviction  ;  and, 
as  I  have  before  remarked,  he  must  be  content  to  recover  according 
to  the  then  value,  even  though  it  amounts  to  one-half  only  of  the 
consideration  expressed  in  the  deed. 

The  case  would  then  stand  thus.  When  the  deed  contains  both 
these  covenants,  if  the  property  at  the  time  of  eviction  be  worth  one 
half  of  the  consideration  and  interest,  the  grantee  may  notwithstand- 
ing, upon  the  covenant  of  seizin,  recover  the  whole  consideration 
and  interest.  But  if  the  property  happen  to  be  worth  double  the 
consideration  money  and  interest,  by  reason  of  the  improvements 
made  thereon,  he  may  waive  the  covenant  of  seizin,  and  resort  to 
the  covenant  for  quiet  enjoyment,  and  thus  recover  the  whole 
amount.  Can  this  be  possible  ?  It  appears  to  me  that,  to  give  such 
an  effect  to  these  covenants,  is  not  reconcilable  with  any  principle  of 
law  or  justice. 

My  understanding  of  the  nature  of  these  covenants,  when  both 
are  contained  in  the  same  deed,  is  this :  That  the  covenant  of  seizin, 
which  relates  to  the  title,  is  the  principal  and  superior  covenant,  to 
which  the  covenant  for  quiet  enjoyment,  which  goes  to  the  posses- 
sion, is  inferior  and  subordinate.  And  I  am  not  aware  that  a  case 
can  possibly  occur,  where  the  grantor  can  recover  a  greater  amount 
in  damages  for  the  breach  of  the  latter  than  of  the  former ;  though 
there  are  many  cases  where  he  may  recover  less.  The  suit  here  is 
brought  upon  both  covenants  ;  and  both,  in  consequence  of  the  total 
failure  of  the  defendant's  title  and  the  eviction,  have  been  broken. 
The  plaintiff,  accordingly,  has  a  right  to  recover  on  both  ;  but  as  the 
amount  of  the  recovery  would,  according  to  my  ideas,  be  the  same 
on  each,  he  must  elect  on  which  of  them  he  means  to  rely,  and  take 
nominal  damages  on  the  other.  The  plaintiff  is  entitled  to  but  one 
satisfaction,  and  he  has  his  remedy  on  either  of  the  covenants,  at  his 
election,  to  obtain  it.  It  will  hardly  be  said  that  he  can  have  judg- 
ment for  the  same  sum  on  both  the  covenants. 

•  Vide  Greenby  and  Kellogg  v.  Wilcocks,  2  Johns.  1 ;  Waldron  v.  M'Carty,  3  John?. 
471 ;  Kortz  v.  Carpenter,  5  Johns.  120;  Hamilton  and  others  v.  Wilson,  4  Johns.  72 ;  Pol- 
lard v.  Dwight,  4  Cranch,  421. 
2 


18  REAL   ESTATE. 

The  covenant  against  incumbrances  stands  upon  a  different  foot- 
ing, and  is  governed  by  different  principles.  That  is  strictly  a  cov- 
enant of  indemnity  ;  and  the  grantee  may  recover  to  the  full  extent 
of  any  incumbrances  upon  the  land,  which  he  shall  have  been  com- 
pelled to  discharge.  But  even  there  it  will  be  found  that  the  same 
rule  prevails,  in  fixing  the  amount  of  damages,  as  in  actions  upon 
the  covenants  of  seizin  and  for  quiet  enjoyment :  that  is,  the  party 
recovers  what  he  has  paid,  with  the  interest,  and  no  more.* 

But  I  consider  the  question  arising  in  this  cause  as  settled  by  au- 
thority ;  and  that,  according  to  established  rules  of  law,  the  plaintiff 
is  not  entitled  to  anything  more  than  the  value  of  the  land,  as  set- 
tled by  the  consideration  in  the  deed. 

In  suits  upon  the  ancient  covenant  of  warranty,  beyond  all  dis- 
pute, the  recovery  was  restricted  to  the  value  of  the  land  at  the  time 
of  making  the  covenant.  Cases  have  occurred  in  which  the  value  of 
the  land  has  been  enhanced  by  subsequent  beneficial  improvements ; 
but  the  rule  as  to  the  extent  of  satisfaction  has  continued  inflexibly 
the  same,  without  regard  to  the  increased  value,  by  whatever  cause 
it  may  have  been  produced.  A  personal  action  will  not  lie  on  the 
covenant  of  warranty,  upon  the  eviction  of  the  freehold  (Bac.  Abi\. 
tit.  Cov.  C.),f  and  for  which  reason,  upon  the  introduction  of  aliena- 
tions by  bargain  and  sale,  new  covenants  were  devised,  but  solely  for 
the  purpose  of  securing  to  the  bargainee  the  personal  responsibility 
of  the  bargainor,  in  case  of  a  failure  of  his  title.  I  think  I  am  war- 
ranted in  saying  that  it  never  was  designed,  by  the  insertion  of  these 
covenants,  to  establish  any  other  rule  of  damages  than  what  pre- 
viously existed  ;  because  there  is  nothing  in  the  terms  of  the  cove- 
nants from  which  an  intention  to  extend  the  liability  of  the  cove- 
nantor can  be  inferred ;  but  the  contrary  is  to  be  presumed,  as  not  a 
single  case  is  to  be  found  where  such  a  construction  of  these  cove- 
nants, which  were  in  a  great  measure  substituted  for  the  covenant 
of  warranty,  has  ever  obtained.  The  covenant  for  quiet  enjoyment, 
as  I  have  before  remarked,  is  that  upon  which  compensation  for  the 
improvements  is  to  be  recovered,  if  at  all.  This  covenant  has  a  more 
strict  analogy  to  the  ancient  covenant  of  warranty  than  any  of  the 
other  modern  covenants.  If  then,  on  the  covenant  of  warranty,  the 
satisfaction  recovered  in  land  was  to  be  equivalent  to  the  value  of 
the  lands  granted,  as  it  existed  at  the  time  when  the  covenant  was 

*  And  if  he  has  not  extinguished  the  incumbrance,  he  can  only  recover  nominal  dam- 
ages.    Delavergne  v.  Norris,  7  Johns.  35S;  Prescott  v.  Trueman,  4  Mass.  627. 
f  Contra,  Gore  v.  Brazier,  3  Mass.  544,  545,  per  Parsons,  Ch.  J. 


PITCHES   v.    LIVINGSTON.  19 

made,  I  do  conceive  that  we  are  bound  to  adopt  a  correspondent  rale, 
when  satisfaction  is  sought  to  be  recovered  in  money,  in  a  personal 
action,  on  the  covenant  for  quiet  enjoyment. 

Such  a  rule,  moreover,  I  consider  to  be  conformable  to  the  inten- 
tion of  the  parties.  I  question  if  one  grantor  out  of  ten  thousand 
enters  into  these  covenants  with  the  remotest  belief  that  he  is  expos- 
ing himself  and  his  posterity  to  the  ruinous  consequences  which 
would  result  from  the  doctrine  contended  for  by  the  counsel  for  the 
plaintiff.  By  giving  this  doctrine  our  sanction,  we  should,  in  my  ap- 
prehension, create  a  most  unexpected  and  oppressive  responsibility, 
never  contemplated  by  the  parties,  and  inflict  an  equally  unmerited 
punishment  upon  grantors  acting  with  good  faith,  and  having  a  per- 
fect confidence  in  the  validity  of  their  title  to  the  land,  which  they 
have  transferred  for  what  it  is  reasonably  worth. 

If  any  imposition  is  practiced  by  the  grantor,  by  the  fraudulent 
suppression  of  truth,  or  suggestion  of  falsehood,  in  relation  to  his 
title,  the  grantee  may  have  an  action  on  the  case,  in  the  nature  of  a 
writ  of  deceit ;  and  in  such  action  he  would  recover  to  the  full  ex- 
tent of  his  loss  (Har.  &  But.  Notes  to  Co.  Litt.  384,  a,  tit.  Warranty ; 
1  Fonb.  Eq.  366  ;  1  Com.  Dig.  236,  A.  8). 

I  am  aware  that  it  is  difficult  to  lay  down  any  general  rule  on 
this  subject,  wholly  free  from  objection.  This  is  a  difficulty  which 
has  been  felt  by  the  profoundest  jurists  in  all  ages.  I  think,  how- 
ever, that  the  rule  of  the  common  law,  which  obliges  the  grantor, 
when  he  believes  he  has  a  valid  title,  and  acts  without  fraud,  to  re- 
fund what  he  has  received,  with  the  interest,  is  as  equitable  as  any 
that  has  ever  been  established ;  and  that  this  is  all  which,  upon 
principles  of  the  most  rigorous  justice,  ought  to  be  exacted  from 
him. 

My  opinion  therefore,  is  that,  in  this  case,  the  plaintiff  is  entitled 
to  recover  the  consideration  money  expressed  in  the  deed,  with  the 
interest,  and  the  costs  of  suit  following  the  eviction,  and  no  more. 

Spencer,  Justice. — It  is  submitted  to  the  court,  by  the  case  made 
and  argued  in  this  cause,  what  is  the  correct  rule  of  damages,  upon 
covenants  of  seizin  and  for  quiet  enjoyment,  contained  in  a  deed 
conveying  lands,  in  a  case  where  the  grantee  has  made  improve- 
ments, and  where  the  value  of  the  land  has  appreciated.  It  is  also 
made  a  question,  whether  the  plaintiff  is  entitled  to  recover  interest 
on  the  consideration  money  paid  for  the  lands. 

It  is  to  be  regretted  that  the  case  is  so  loose  in  several  respects. 
It  is  fair,  however,  to  infer  from  the  case  as  it  stands,  and  as  it  was 
argued,  that,  in  point  of  fact,  both  covenants  were  broken ;  that  the 


20  REAL   ESTATE. 

plaintiff  was  evicted  for  defect  of  title  in  the  defendant,  and  that 
the  plaintiff  had  made  improvements,  in  the  usual  course  of  agricul- 
ture, on  the  lands  conveyed  by  the  defendant  to  him,  of  a  substantial 
kind  to  the  value  of  $925. 

The  case  of  Staats  v.  The  Executors  of  Ten  Eyck  (3  Caines,  112), ' 
decides  two  of  the  questions  which  arise  out  of  this  case.  In  that 
cast',  though  the  value  of  the  land  had  increased  by  extrinsic  causes, 
the  plaintiff  was  allowed  to  recover  only  the  consideration  paid,  with 
the  interest,  costs  and  counsel  fees.  The  interest  was  allowed,  be- 
cause the  purchaser  was  subject  to  an  action  for  the  mesne  profits  ; 
and  in  the  present  case  it  is  to  be  intended  that  the  plaintiff  is  liable 
to  pay  them  to  the  person  who  has  the  title,  and  consequently  it  is 
to  be  allowed.  It  will  be  seen  that  these  two  questions  have  re- 
ceived a  similar  determination  in  the  supreme  judicial  court  of  Mas- 
sachusetts (Marston  v.  Hobbs,  2  Mass.  433).  In  the  case  before 
cited,  of  Staats  v.  The  Executors  of  Ten  Eyck,  the  court  expressly 
reserved  its  opinion,  upon  a  case  like  the  present,  where  beneficial 
improvements  have  been  made  on  the  premises  after  the  purchase. 
It  was  then  considered  that  there  might  be  a  difference  between  the 
case  of  the  rise  in  value  by  the  natural  appreciation  of  lands,  depend- 
ing in  a  great  measure  on  ideal  worth,  and  the  case  of  improvements 
of  a  beneficial  kind. 

This  question  I  do  not  think  has  been  settled  in  the  English 
courts.  It  has  never  been  decided  in  our  own,  and  consequently  it 
appears  to  me,  that  we  are  at  full  liberty  to  fix  a  rule,  which  shall 
bear  analogy  to  other  cases,  and  attain  complete  justice  between  the 
parties.  I  cannot  pretend  to  say  that  the  rule  which  I  shall  lay 
down  will  be  free  from  objection  when  applied  to  all  cases ;  and  I 
am  not  sensible  that  any  general  rule,  in  almost  any  given  case,  will 
invariably  be  free  from  exception.  It  is  the  very  nature  of  general 
rules  sometimes  to  operate  harshly  ;  but  the  necessity  of  a  fixed 
standard  of  justice  is  of  more  importance  to  the  interests  of  men, 
than  one  that  is  capricious  and  fluctuating. 

It  has,  I  think,  been  erroneously  said  that  the  defect  of  title  is  a 
case  of  mutual  error ;  on  the  contrary,  from  my  observation  and 
knowledge  of  the  sale  of  lands,  I  think  the  defect  of  title  is  a  matter 
generally  and  almost  universally  in  the  peculiar  knowledge  of  the 
vendor.  It  is  a  rare  case  for  a  purchaser  to  investigate  the  seller's 
title ;  and  in  most  cases  it  is  impossible.  The  buyer  relies  on  the 
allegations  of  the  vendor,  on  his  apparent  responsibility  to  reimburse 
in  case  of  eviction,  upon  his  possession  of  the  property,  and  emphat- 
ically on  his  covenants  of  title  and  for  quiet  enjoyment.      These 


PITCHER   v.   LIVINGSTON.  21 

covenants,  whenever  they  occur  in  a  deed,  seem  to  me  to  indicate, 
beyond  all  question,  that  the  purchaser  did  not  mean  to  rely  on  the 
title  of  the  vendor  alone,  but  that  he  meant  to  have  his  personal  lia- 
bility as  his  guaranty.  The  language  of  the  vendor  corresponds 
with  that  of  the  purchaser,  and  holds  out  the  idea  that  he  had  sold 
the  land  at  his  own  peril,  and  that  he  would  warrant  it  to  be  his. 
Extravagant  cases  have  been  put  hypothetically  to  show  the  enor- 
mous injustice  of  the  rule,  that  the  vendor  must  be  answerable  for 
improvements.  It  has  been  asked  if  a  piece  of  land  thus  sold,  with 
covenants,  should  become  the  site  of  a  flourishing  city,  what  fortune 
could,  under  a  rule  allowing  for  improvements,  withstand  ruin  ?  It 
may  be  retorted  to  such  a  question,  what  is  to  become  of  the  indus- 
trious citizen  or  mechanic  who  has  spent  his  hard  earnings  in  erect- 
ing his  little  house  or  workshop,  relying  on  the  covenant  in  his  deed, 
if  he  can  only  get  back  his  purchase  money  and  interest  ?  It  is  not 
fair,  however,  to  test  a  rule  by  extreme  cases.  To  settle  a  general 
rule  wisely  and  equitably,  we  should  have  an  eye  to  cases  which 
generally  occur,  and  not  be  startled,  on  the  one  hand  or  the  other, 
by  those  occurrences  which  are  rare  and  few.  In  general,  the  defect 
of  title  happens  in  sales  between  man  and  man,  where  the  improve- 
ments are  of  the  ordinary  and  beneficial  kind.  If  the  improvements 
are  merely  to  gratify  the  eye  of  the  individual,  and  to  pamper  his 
vanity  and  pride,  a  jury  would  be  warranted  to  take  those  things 
into  consideration  in  their  assessment  of  damages. 

I  lay  it  down  as  a  rule,  which  cannot  require  much  illustration  to 
enforce  it,  on  the  score  of  analogy  and  justice,  that  in  actions  for  a 
breach  of  covenant,  the  damages  are  to  be  estimated  according  to  the 
value  of  the  thing  when  the  covenant  was  broken.  Thus,  in  a  cove- 
nant for  the  delivery  of  specific  property  at  a  given  day,  in  case  of  a 
failure,  the  rale  invariably  is  to  allow  in  damages  the  value  of  the 
thing  on  the  day  it  ought  to  have  been  delivered,  and  when  the  cov- 
enant was  broken.  So,  also,  on  contracts  for  the  delivery  of  stock, 
the  value  at  the  time  it  ought  to  have  been  delivered,  and  even  at 
the  time  of  trial,  has  been  the  criterion  of  damages  (2  Burr.  1010 ;  1 
Str.  406 ;  2  East,  211).  In  the  present  case,  the  defendant  cove- 
nanted that  the  plaintiff  should  quietly  enjoy  the  land  sold.  This 
covenant  was  violated  when  the  plaintiff  was  evicted ;  and  he  has 
lost,  by  the  breach  of  the  covenant,  not  only  the  quiet  enjoyment  of 
the  land,  but  the  usufruct  of  those  erections  and  improvements, 
without  which,  it  is  fair  to  say,  that  the  land  itself  could  not  have 
been  enjoyed  agreeably  to  the  intention  of  the  parties.  It  necessarily 
follows,  that  had  the  defendant  kept  his  covenant  and  allowed  the 


22  REAL   ESTATE. 

plaintiff  to  enjoy  the  premises  sold,  he  would  not  have  been  de- 
prived of  those  improvements  made  on  the  tiling  itself,  the  making 
of  which  was  an  inducement  to  the  purchase.  How  it  can  be  called 
a  severe  doctrine  to  compel  the  vendor  to  respond  in  damages  for 
ordinary  and  necessary  improvements,  I  confess  myself  incapable  of 
perceiving,  when  he  has  undertaken,  for  a  price  paid,  to  assure  to  the 
vendee  the  validity  of  his  title.  Very  often,  and  perhaps  generally, 
there  is  a  want  of  due  caution  on  the  part  of  a  vendor  who  sells 
without  title  ;  and  not  unfrequently  there  is  a  mixture  of  fraud, 
which  sets  detection  at  defiance.  The  rule  I  have  advanced,  whilst 
it  will  restore  to  the  innocent  vendee  no  more  than  he  has  actually 
lost,  will  induce  greater  caution  in  sellers,  who,  if  responsible  only 
for  the  principal  and  interest,  will  find  the  selling  of  land  without 
title  an  easy  and  excellent  method  of  raising  money,  instead  of  re- 
sorting to  borrowing. 

It  follows,  from  the  view  I  have  taken  of  this  question,  that  the 
plaintiff,  under  the  covenant  for  quiet  enjoyment,  may  recover  the 
improvements ;  and  that  under  the  covenant  of  seizin  he  could  not, 
unless  the  grantee  was  seized  by  virtue  of  the  deed,  and  has  been 
evicted  under  a  title  paramount.  I  have  not  entered  into  any  ex- 
amination of  the  ancient  method  of  proceeding  under  the  warrantia 
chartcv,  and  the  rule  which  obtained  in  such  case,  under  the  writ  of 
cape  ad  vahntiam  /  because  the  covenants  of  warranty  were  then 
considered  as  real  covenants  binding  only  on  the  grantor  and  his 
heirs.  It  has,  however,  been  urged  that  the  introduction  of  the  cov- 
enants of  seizin  and  for  quiet  enjoyment  were  substitutes  for  the 
covenant  of  warranty,  and  that  the  same  rule  ought  to  follow  the 
substituted  covenants.  It  appears  to  me  much  more  jDroper  to  con- 
sider the  introduction  of  personal  covenants  in  the  alienation  of  real 
property,  as  immediately  assimilating  themselves  to  other  j)ersonal 
covenants  and  contracts,  and  as  subject  to  the  same  rules  of  con- 
struction, and  the  same  rule  of  damages,  whenever  they  are  broken. 
If  so,  the  covenant  for  quiet  enjoyment  was  not  broken  until  the 
eviction,  and  the  rule  of  damages  would  be  the  property  lost  at  that 
time,  which  would  include  the  price  paid  for  the  land,  and  the  value 
of  those  erections  and  improvements  which  had  been  added  at  the 
plaintiff's  expense.  It  is  supposed,  that  though  the  covenants  of 
seizin  and  for  quiet  enjoyment  are  distinct,  and  regard  different  ob- 
jects, yet  that  where  the  first  fails,  the  latter  is  merged  in  it.  This 
principle  strikes  me  as  illogical  and  unfounded  in  authority. 

There  are  authorities  (Freem.  450,  pi.  G12 ;  6  Yin.  426,  pi.  20  ; 
lb.  476,  pi.  4)  which  show  that  where,  in  a  deed,  a  man  covenants 


PITCHER   v.    LIVINGSTON.  23 

that  he  hath  a  good  right  to  convey,  &c,  and  that  the  party  shall 
quietly  enjoy,  one  covenant  goes  to  the  title  and  the  other  to  the 
possession.  And  why  a  person  who  has  broken  two  distinct  agree- 
ments, should  protect  himself  from  a  responsibility  on  both,  and  be 
liable  only  on  the  least  extensive  one,  surpasses  my  powers  of  com- 
prehension. A  case  has  been  mentioned  as  decided  in  the  Supreme 
Court  of  Pennsylvania  (4  Dal.  436),  as  bearing  on  the  present ;  it 
will  be  found  to  have  been  on  the  mere  covenant  of  seizin,  and 
power,  &c,  to  convey  in  fee.  The  rule  I  have  adopted  meets  that 
case,  and  is  reconcilable  with  it,  for  there  the  covenant  was  broken 
as  soon  as  it  was  made,  and  the  damages  then  sustained  were  the 
consideration  money  and  interest. 

Kent,  Chief  Justice. — The  declaration  in  this  case  is  upon  two 
distinct  covenants  in  the  deed,  to  wit,  the  covenant  of  seizin  and  the 
covenant  for  quiet  enjoyment ;  and  the  verdict  was  taken  for  the 
plaintiff,  subject  to  the  opinion  of  the  court  as  to  the  rule  of  dam- 
ages. We  must  take  it  for  granted  upon  this  case,  and  so  it  seems 
to  have  been  understood  and  admitted  upon  the  argument,  that  both 
covenants  were  broken,  and  the  question  then  is,  what  is  the  meas- 
ure of  damages  when  the  two  covenants  are  the  subject  of  one  ac- 
tion, and  a  breach  of  each  has  been  duly  assigned  and  proved  ? 

The  case  of  Staats  v.  The  Executors  of  Ten  Eyck,  goes  very  far 
towards  a  decision  of  this  question.  That  was  a  suit  upon  the  same 
covenants,  and  a  breach  of  both  was  admitted.  The  point  submitted 
was  the  rule  of  damages,  "  under  the  covenants  mentioned  in  the 
deed."  The  court  adjudged  that  the  rule  of  damages  was  the  con- 
sideration money  and  interest ;  and  I  observed,  in  giving  my  opinion 
in  that  case,  that  the  covenant  for  quiet  enjoyment  could  have  no 
greater  operation,  as  to  damages,  than  the  covenant  of  seizin.  Mr. 
Justice  Livingston,  who  also  gave  his  opinion,  was  silent  upon  that 
point ;  but  it  was  a  necessary  consequence  of  the  judgment  of  the 
court,  that  the  increased  value  of  the  land  could  not  be  recovered 
under  either  of  those  covenants.  The  doctrine  that  the  measure  of 
damages,  under  the  covenant  for  quiet  enjoyment,  is  to  be  computed 
from  the  time  of  eviction,  and  to  include  the  then  value,  even  when 
the  title  has  totally  failed,  and  the  covenant  of  seizin  broken,  cannot 
possibly  be  reconciled  with  that  decision.  I  do  not  wish,  however, 
to  rest  my  opinion  in  this  case  solely  upon  that  authority.  As  the 
question  is  of  great  importance,  I  am  content  to  re-examine  it  at 
large. 

"What  would  be  the  rule  of  damages  under  a  covenant  for  quiet 
enjoyment,  if  a  breach  of  that  covenant  was  shown,  which  did  not 


24  REAL   ESTATE. 

amount  to  a  breach  of  the  covenant  of  seizin,  or  if  that  covenant 
stood  alone  in  a  deed,  unaccompanied  with  the  covenant  of  seizin,  is 
not  a  point  at  present  before  us.  If,  however,  it  stood  alone  in  a 
deed,  I  should  think,  as  at  present  advised,  that  upon  a  total  failure 
of  title,  the  damages  would  be  the  same  as  in  the  covenant  of  seizin, 
and  no  more,  for  the  analogy  is  very  close  between  that  covenant 
and  the  ancient  warranty.  But  when  the  covenant  for  quiet  enjoy- 
ment follows  a  covenant  of  seizin  in  the  same  deed,  the  intent  of  the 
instrument,  taken  together,  appears  manifestly  to  be,  that  the  one 
covenant  is  merely  auxiliary  to  the  other,  as  the  one  covenant  re- 
lates to  the  title,  and  the  other  refers  to  the  future  enjoyment  of 
that  title.  The  covenant  for  quiet  enjoyment  respects  the  posses- 
sion merely,  and  it  would  seem  to  be  unreasonable  and  very  incon- 
sistent for  the  plaintiff  to  recover  under  one  covenant  the  whole 
value  of  the  estate,  as  it  was  intended  to  be  conveyed,  and  under 
another  covenant  in  the  same  deed,  distinct  and  increased  damages, 
because  he  was  not  permitted  to  enjoy  that  estate.  These  covenants 
must  be  taken  in  connection  to  ascertain  their  import.  The  covenant 
for  further  assurance  is  one  of  these  secondary  covenants,  and  if  the 
grantor  had  no  title,  and  the  value  of  the  land  was  recovered  back 
by  the  grantee,  he  could  not  be  called  upon  in  damages  for  further 
assurance.  This  would  be  very  idle  when  it  had  been  ascertained  by 
the  recovery  under  the  principal  covenant  that  he  had  nothing  to 
assure.  If  the  grantee  recovers  what  is  to  be  deemed,  upon  estab- 
lished principles,  the  value  of  the  land,  under  the  covenant  of  title, 
it  amounts  in  effect  to  a  satisfaction  and  extinguishment  of  the  cov- 
enants relative  to  the  possession,  and  the  grantee  cannot  receive  any- 
thing more  than  nominal  damages  under  those  covenants.  There  is 
no  precedent  to  authorize  any  greater  recovery  under  the  covenant 
for  quiet  enjoyment  than  under  the  covenant  of  seizin  ;  and  the  uni- 
versal silence  in  the  books  on  a  point  which  so  frequently  gives  oc- 
casion for  litigation,  is  a  strong  argument  to  prove  that  no  such  rule 
exists  as  that  contended  for  by  the  plaintiff.  I  believe  it  has  never 
been  the  received  opinion  with  us,  that  in  a  deed  containing  the 
usual  covenants,  viz.  the  covenant  of  title  or  seizin,  and  the  covenant, 
relative  to  the  possession,  the  latter  covenants,  in  a  case  of  no  title, 
and  consequently  of  the  breach  of  the  covenant  of  title,  would  be- 
come paramount  covenants  and  afford  a  larger  claim  for  damages. 
The  latter  construction  would  not  only  introduce  a  rule  hitherto  un- 
discovered in  the  common  law  of  England,  but  a  rule  of  great  mo- 
ment in  its  immediate  consequences  to  the  community  ;  and  I  must 


PITCHER   v.    LIVINGSTON.  25 

be  thoroughly  persuaded  of  the  soundness  of  the  construction,  either 
upon  authority  or  principle,  before  I  can  consent  to  adopt  it.  When, 
therefore,  there  is  no  authority  for  such  a  construction  to  be  met 
with  in  the  decisions  at  Westminster  Hall,  and  it  appears  to  be  re- 
pugnant to  the  natural  and  reasonable  interpretation  of  the  cove- 
nants, as  found  in  connection  in  the  same  deed,  I  must  adhere  to  the 
opinion  which  I  gave  in  the  case  of  Staats  v.  The  Executors  of  Ten 
Eyck,  and  which  must,  from  a  view  of  that  case,  have  been  also  the 
unanimous  opinion  of  the  court. 

The  case  before  us  then,  resolves  itself  into  this  question,  What 
is  the  extent  of  the  rule  of  damages  on  a  breach  of  the  covenant  of 
seizin  ? 

Three  points  are  submitted  by  the  case  : 

1.  Whether  the  plaintiff  can  recover  interest  on  the  consideration 
paid ; 

2.  Whether  he  can  recover  for  the  increased  value  of  the  land  ; 
and 

3.  Whether  he  can  recover  for  his  beneficial  improvements. 
The  two  first  points  were  settled  in  the  case  of  Staats  v.  Ten 

Eyck,  and  need  not  again  be  examined.  Nothing  has  been  shown 
which  affects  the  accuracy  of  that  decision  on  those  points,  and  it 
deserves  notice  as  being  of  great  weight  in  support  of  that  decision, 
that  in  the  States  of  Massachusetts  and  Pennsylvania  the  same  rule 
of  damages  is  established  in  an  action  for  the  breach  of  the  covenant 
of  seizin.  The  third  point  was  reserved  in  the  consideration  of  the 
former  case,  and  no  opinion  expressed  upon  it.  It,  therefore,  re- 
mains open  for  discussion. 

I  must  own  that  I  never  perceived  any  ground  for  a  distinction 
as  to  the  damages,  between  the  rise  in  the  value  of  the  land  and  the 
improvements.  There  is  no  reason  for  such  a  distinction,  deducible 
from  the  nature  of  the  covenant  of  seizin.  Improvements  made 
upon  the  land  were  never  the  subject-matter  of  the  contract  of  sale, 
any  more  than  its  gradual  increase  or  diminution  in  value.  The  sub- 
ject of  the  contract  was  the  land  as  it  existed  and  was  worth  when 
the  contract  was  made.  The  purchaser  may  have  made  the  purchase 
under  the  expectation  of  a  great  rise  in  the  value  of  the  land,  or  of 
great  improvements  to  be  made  by  the  application  of  his  wealth  or 
his  labor.  But  such  expectations  must  have  been  confined  to  one 
party  only,  and  not  have  entered  as  an  ingredient  into  the  bargain. 
It  was  the  land  and  its  price,  at  the  time  of  the  sale,  which  the  par- 
ties had  in  view,  and  to  that  subject  the  operation  of  the  contract 


26  REAL   ESTATE. 

ought  to  be  confined.  The  argument  in  favor  of  the  value  of  the 
land,  and  the  improvements  as  they  exist  at  the  time  of  eviction,  has 
generally  excepted  cases  of  extraordinary  increase  and  of  very  ex- 
pensive improvements.  It  seems  to  have  been  admitted  that,  with- 
out such  a  limitation  to  the  doctrine,  it  could  not  be  endured.  But 
this  destroys  everything  like  a  fixed  rule  on  the  subject,  and  places 
the  question  of  damages  in  a  most  inconvenient  and  dangerous  un- 
certainty. We  have  a  striking  illustration  of  this  in  the  French  law. 
The  rule  in  France  upon  bona  fide  sales,  according  to  Pothier  (Traite 
du  Contrat  de  Yente,  Nos.  132  to  141),  is  to  make  the  seller,  on 
eviction  of  the  buyer,  refund  not  only  the  original  price,  but  the  in- 
creased value  of  the  land,  and  the  expense  of  the  meliorations  made. 
He  admits,  however,  that  the  intention  of  the  parties  is  to  be  the 
rule  in  the  assessment  of  damages,  and  that,  in  the  case  of  an  im- 
mense augmentation  in  the  price  of  the  land,  or  in  the  value  of  the 
improvements,  the  seller  is  to  answer  only  for  the  moderate  damages 
which  the  parties  could  be  supposed  to  have  anticipated  when  the 
contract  was  made.  It  is  plainly  to  be  perceived,  that  there  is  no 
certainty  in  such  a  loose  application  of  the  rule,  and  that  it  leaves 
the  damages  to  an  arbitrary  and  undefined  discretion,  and  so  it  ap- 
pears to  have  been  understood ;  for  in  the  "  Institution  au  Droit 
Francois,"  by  M.  Argou  (liv.  3,  c.  23),  it  is  laid  down,  that  "  the 
question  of  damages,  beyond  the  price  paid,  is  with  them  very  arbi- 
trary." This  is  not  consonant  to  the  genius  of  our  law,  nor  does  it 
recommend  itself  well  for  our  adoption.  On  a  subject  of  such  gen- 
eral concern,  and  of  such  momentous  interest,  as  the  usual  covenants 
in  a  conveyance  of  land,  the  standard  for  the  computation  of  dam- 
ages, upon  a  failure  of  title  (whatever  that  standard  may  be),  ought, 
at  least,  to  be  certain  and  notorious.  The  seller  and  the  purchaser 
are  equally  interested  in  having  the  rule  fixed.  I  agree,  that  the 
contract  is  to  be  construed  according  to  the  intention  of  the  parties  ; 
but  I  consider  that  the  intention  of  the  covenant  of  seizin,  as  uni- 
formly expounded  in  the  English  law,  is  only  to  indemnify  the 
grantee  for  the  consideration  paid.  This  was  the  settled  rule  at 
common  law,  upon  the  ancient  warranty,  of  which  this  covenant  of 
seizin  is  one  of  the  substitutes  ;  and  all  the  reasons  of  policy  which 
prevent  the  extension  of  the  covenant  to  the  increased  value  of  the 
land,  apply  equally,  if  not  more  strongly,  to  prevent  its  extension  to 
i in provements  made  by  the  purchaser.  A  seller  may  be  presumed, 
at  all  times,  able  to  return  the  consideration  which  he  actually  re- 
ceived ;  but  to  compel  him  to  pay  for  expensive  improvements,  of 


PITCHER   v.    LIVINGSTON.  27 

the  extent  of  which  he  could  have  made  no  calculation,  and  for 
which  he  received  no  consideration,  may  suddenly  overwhelm  him 
and  his  family  in  irretrievable  ruin.  The  common  law  never  left 
the  vendor  in  such  a  state  of  uncertainty ;  and  it  made  no  distinction 
between  the  natural  rise  of  the  land  and  its  increased  value  by  build- 
ings or  other  improvements.  The  feoffor  was  still  to  answer  only 
for  the  value  of  the  land  as  it  was  worth  when  the  feoffment  was 
made.  This  was  the  amount  of  the  decision  in  the  Tear  Book,  30 
Ed.  Ill,  14,  b.  A  man  had  a  wardship,  and  granted  it  over  with 
warranty,  and  afterwards  the  grantee  was  impleaded  and  vouched 
the  grantor.  Now  the  wardship  was  of  more  value  at  the  time  of 
the  voucher  than  it  was  at  the  time  of  the  grant  with  warranty,  by 
reason  of  other  lands  descending  afterwards,  or  by  buildings  or 
otherwise,  and  it  was  held  that  the  vouchee  could  take  protestation 
of  this  matter  when  he  entered  into  the  warranty,  i.  e.  when  he  was 
admitted  to  defend,  instead  of  the  original  tenant.  And  Burton  laid 
this  down  for  law,  that  if  land  be  better  after  the  feoffment  made,  by 
buildings  or  otherwise,  he  who  receives  in  value  receives  but  accord- 
ing as  the  land  was  worth  at  the  time  of  the  feoffment,  and  not 
more.  The  same  rule  was  laid  down  for  law  by  Newton,  J.,  in  the 
Year  Book,  19  H.  YI,  46,  a,  and  again  in  61,  a,  and  he  says  it  had 
been  so  adjudged,  and  he  refers  to  the  decision  in  30  Ed.  Ill,  which 
he  said  was  not  controverted.  This  rule,  upon  the  sanction  of  these 
authorities,  has  been  incorporated,  as  good  law,  into  the  Abridg- 
ments of  Fitzherbert,  Brooke  and  Kolle.  But  the  case  of  Ballet  v. 
Ballet  (Godb.  151),  in  the  time  of  James  I,  is  a  much  more  modern 
determination  upon  the  same  point.  That  was  a  case  of  a  writ  of 
warrantia  chartce,  and  upon  demurrer,  the  court  held  that  if  there 
be  new  buildings,  of  which  the  warranty  was  demanded,  which  were 
not  at  the  time  of  the  warranty  made,  and  the  deed  is  shown,  the 
defendant  ought  not  to  demur,  but  to  show  the  special  matter,  and 
enter  into  the  warranty  for  so  much  as  was  at  the  time  of  the  making 
of  the  deed,  and  not  for  the  residue.  Indeed,  the  point  is  too  clear 
to  admit  of  doubt,  that  the  increased  value  of  the  land  by  buildings 
or  other  improvements,  made  no  alteration  at  common  law  in  the 
rule  of  damages ;  and,  for  the  reasons  given  in  the  former  case  of 
Staats  v.  Ten  Eyck,  it  can  make  no  alteration  in  the  covenant  of 
seizin,  which,  as  to  the  rule  of  compensation,  is  commensurate  only 
with  the  ancient  warranty. 

I  am  therefore  of  opinion,  in  this  case,  that  the  sum  allowed  for 
the  increased  value  of  the  land,  and  the  sum  allowed  for  improve- 


28  REAL   ESTATE. 

incuts,  be  deducted  from  the  verdict,  and  that  judgment  be  entered 
for  the  residue  only. 

Thompson,  J.,  and  Yates,  J.,  concurred. 

Judgment  accordingly. 

So  a  purchaser  of  real  estate,  who  enters  into  possession  and  makes  improve- 
ments before  the  title  is  ascertained,  incurs  this  expense  at  his  own  risk,  and 
cannot  recover  it  if  the  vendor  is  unable  to  make  a  good  title  (Worthington  v. 
Wanington,  8  C.  B.  134  [1849]).  But  in  trespass  for  mesne  profits  against  a  lona 
fide  purchaser,  he  should  be  allowed  the  value  of  permanent  improvements  made 
in  good  faith,  to  the  extent  of  the  rents  and  profits  claimed  (Jackson  v.  Loomis, 
4  Cowen,  1G8;  see  also  Bedell  v.  Shaw,  59  N.  Y.  40). 


Rights  of  Parties  Fixed  at  Commencement  of  Action  ;  Failure 
of  Title  to  an  Undivided  Part  of  a  Specified  Tract  ; 
Proportionate  Recovery. 


[1809]  Morris  v.  Phelps  (5  Johns.  49). 

In  an  action  on  the  covenant  of  seizin  in  a  deed,  the  defendant  is  not  allowed  to  give  in 
evidence  a  title  acquired  by  him  subsequent  to  bringing  the  action  ;  but  the  rights 
of  the  parties  must  be  determined  according  to  their  existence  and  extent  at  the 
time  when  the  action  was  commenced. 

If  A.  conveys  land  to  B.,  with  covenant  of  seizin,  <fec,  and  the  title  to  part  only  of  the 
land  fails,  the  sale  will  not  be  rescinded,  so  as  to  give  the  vendee  a  right  of  action 
to  recover  back  the  whole  consideration  money ;  but  the  plaintiff  is  only  entitled  to 
recover  damages  in  proportion  to  the  extent  of  the  defect  of  title,  or  the  value  of  the 
part  lost ;  and  the  measure  of  damages  is  the  value  of  the  part  for  which  the  title 
has  failed,  taken  in  proportion  to  the  price  of  the  whole. 

This  was  an  action  of  covenant.  The  declaration  contained  two 
counts.  The  first  count  was  on  a  deed  dated  1st  January,  1795, 
whereby  the  defendant,  in  consideration  of  20,000Z.,  conveyed  to  the 
plaintiff  67,953  acres  of  land,  and  among  which  were  two  tracts  in 
township  No.  2  in  the  first  range  of  townships  in  Ontario ;  the  one 
containing  3,360  acres,  and  the  other  1,600  acres,  both  described  by 
metes  and  bounds.  In  the  deed  the  defendant  covenanted  that  he 
was  seized  in  fee  of  all  the  premises,  without  any  charge  or  incum- 
brance whatever,  and  that  he  had  good  right  to  convey,  &c.  The 
second  count  was  on  a  deed  dated  10th  April,  1792,  whereby  the  de- 
fendant, in  consideration  of  $2,000,  conveyed  to  the  plaintiff  2,000 
acres  of  land  in  township  No.  2  aforesaid,  with  the  like  covenant  of 


MORRIS   v.   PHELPS.  29 

seizin,  &c.  The  breach  assigned  was,  that  the  defendant  was  not 
seized  of  the  premises  so  conveyed,  nor  had  good  right  to  convey 
them  as  aforesaid. 

The  cause  was  tried  at  the  Ontario  circuit,  the  17th  of  June,  1807. 

At  the  trial  the  plaintiff  gave  in  evidence  the  two  deeds  from 
the  defendant.  He  admitted  that  the  defendant,  on  the  10th  of 
May,  1790,  had  a  title  to  the  whole  of  township  ISTo.  2,  in  which  the 
lands  lie ;  and  gave  in  evidence  a  deed  from  the  defendant  to  Caleb 
Gardner  and  five  other  persons,  dated  the  10th  of  May,  1790,  for  the 
whole  of  the  said  township. 

The  defendant  then  gave  in  evidence  a  deed  dated  the  15th  of 
March,  1792,  from  the  said  Gardner  and  others  (Peleg  Gorton  ex- 
cepted) to  the  defendant,  for  the  two  tracts  of  land  mentioned  in 
the  first  count,  and  also  a  deed  from  the  said  Peleg  Gorton  to  the 
defendant,  dated  the  4th  of  April,  1792,  for  the  tract  mentioned  in 
the  second  count.  The  defendant  also  offered  in  evidence,  a  deed 
from  the  heirs  of  Peleg  Gorton  (he  being  dead)  to  Caleb  Gardner 
and  the  four  other  persons,  of  all  the  right  of  the  said  heirs  to  the 
lands  mentioned  in  the  first  count.  This  deed  was  dated  the  13th 
of  June,  1807,  and  subsequent  to  the  commencement  of  this  suit. 
He  also  offered  in  evidence  a  deed  from  Caleb  Gardner  and  the  four 
others  to  the  heirs  of  Peleg  Gorton,  conveying  to  them  their  title 
to  the  2,000  acres  mentioned  in  the  second  count,  and  dated  also  the 
13th  of  June,  1807.  These  two  deeds  were  rejected  by  the  judge  as 
inadmissible  evidence,  being  executed  since  the  commencement  of 
the  suit.  The  defendant  then  offered  to  prove  that  the  lands  men- 
tioned in  the  first  count,  were  of  inferior  quality  to  the  residue  of 
the  lands  conveyed  by  the  first  mentioned  deeds,  and  that  damages 
ought  to  be  assessed  in  proportion  only  to  the  value.  This  evidence 
was  overruled,  and  the  judge  decided  that  the  plaintiff  was  entitled 
to  recover  such  a  proportion  of  the  consideration  money,  with  inter- 
est, as  the  lands  mentioned  in  the  first  count  bore  to  all  the  lands 
conveyed  by  the  deed ;  and  that  the  defendant  was  entitled  to  re- 
cover on  the  second  count,  the  full  consideration  in  the  deed  men- 
tioned in  the  second  count,  with  interest. 

The  plaintiff  then  produced  a  deed  from  Gabriel  Furman  and 
William  Steele,  and  their  wives,  to  the  defendant,  dated  6th  June, 
1807,  reciting  that  the  plaintiff  did,  by  deed  dated  8th  April,  1795, 
sell  to  them  the  two  tracts  in  township  No.  2,  and  granted  to  the 
defendant  by  Gardner  and  others,  by  deed  dated  15th  March,  1792, 
containing  3,360  acres  and  1,600  acres ;  also,  2,000  acres  in  the  said 
township,  granted  to  the  defendant  by  Peleg   Gorton,  by  a  deed 


30  REAL   ESTATE. 

dated  4th  April,  1702,  and  reciting  that  it  had  been  discovered  that 
there  was  a  defect  of  title  in  the  said  lands,  and  a  suit  had  been 
brought  by  the  plaintiff  against  the  defendant,  of  whom  he  pur- 
chased, and  which  suit  was  then  pending,  and  reciting  that  the  said 
grantors,  desirous  of  obtaining  a  reimbursement  of  the  moneys  paid 
by  them  to  the  plaintiff  for  the  said  lands,  had  agreed  to  reconvey 
the  said  lands  to  the  defendant,  he  repaying  to  the  plaintiff  the  con- 
sideration received  for  the  same,  with  interest :  and  the  grantors  ac- 
cordingly released  to  the  defendant  all  the  said  three  tracts.  The 
deed  contained  covenants,  that  neither  they  (Steele  or  Furman)  nor 
the  plaintiff,  had  done  anything  to  alter  or  change  the  title,  but  that 
the  defendant  should  hold  the  same  as  they  had  done ;  and  that  they 
would  warrant  and  defend  the  same  unto  the  defendant,  against 
them  and  the  plaintiff.  The  plaintiff  then  proved  that,  on  the  day 
previous  to  the  trial,  he  tendered  the  said  deed  to  the  defendant, 
and  that  the  same  was  refused  by  him. 

The  jury  found  a  verdict  for  the  plaintiff  for  $10,944  damages, 
being  the  full  consideration  with  interest,  for  the  three  tracts  set 
forth  in  the  declaration. 

A  motion  was  made  for  a  new  trial,  and  the  following  points 
were  raised  for  the  consideration  of  the  court : 

1.  Whether  the  release  from  the  heirs  of  Peleg  Gorton  to  Gard- 
ner and  others,  and  the  release  from  Gardner  and  others  to  the  heirs 
of  Gorton,  ought  not  to  have  been  admitted  in  evidence ;  and  if  so, 
whether  any  and  what  damages  ought  to  have  been  allowed  to  the 
plaintiff. 

2.  Whether  the  evidence  respecting  the  lands  in  the  first  count 
ought  not  to  have  been  received ;  and  if  so,  whether  the  sum  recov- 
ered ousht  not  to  have  been  for  the  amount  of  the  value  of  the  last 
mentioned  land,  with  interest,  and  no  more. 

3.  Admitting  the  evidence  offered  by  the  defendant  to  have  been 
properly  overruled,  whether  the  plaintiff  ought  to  recover  more  than 
one-sixth  of  the  consideration  and  interest,  for  the  two  tracts  men- 
tioned in  the  first  count,  and  five-sixths  of  the  consideration  and  in- 
terest, for  the  tract  set  forth  in  the  second  count. 

Kent,  Chief  Justice,  delivered  the  opinion  of  the  court. — This 
action  is  for  a  breach  of  the  covenants  of  seizin,  contained  in  two 
separate  deeds. 

In  one  of  them  the  defendant,  for  a  large  consideration,  conveyed 
three  tracts  of  land,  when,  as  to  two  of  those  tracts,  he  had  only  a 
right  to  an  undivided  part ;  and  in  the  other  deed,  for  a  valuable 
consideration,  he  conveyed  one  tract  when  he  had  a  right  only  to  an 
undivided  part  of  it. 


MORRIS  v.   PHELPS.  31 

Upon  the  trial,  the  defendant  offered  to  show  that  the  lands  to 
which  the  title  in  part  failed,  in  the  first  deed,  were  of  inferior  qual- 
ity to  the  other  lands  mentioned  in  the  deed,  and  this  evidence  was 
rejected.  He  also  offered  in  evidence  deeds  executed  a  few  days  be- 
fore the  trial,  to  the  persons  under  whom  he  held  when  he  conveyed 
to  the  plaintiff,  with  a  view  to  confirm  the  title,  and  this  evidence 
was  rejected.  A  verdict  was  taken  for  the  whole  consideration 
given  for  the  lands,  of  which  the  title  to  part  only  had  failed. 

The  questions  arising  upon  this  case  are  respecting  the  compe- 
tency of  the  evidence  offered,  and  the  true  rule  and  measure  of 
damages. 

1.  The  deeds  of  June,  1807,  were  properly  rejected.  They  were 
executed  only  a  few  days  before  the  trial,  and  the  rights  of  parties 
must  be  determined  according  to  the  existence  and  extent  of  those 
rights  when  the  action  is  commenced  (2  Saund.  171,  c ;  3  Term  Rep. 
186 ;  4  East,  507). 

2.  The  other  points  in  the  case  merit  more  attention.  They  de- 
pend upon  the  exposition  and  application  of  principles  of  general 
importance. 

The  fee  of  five-sixths  of  the  two  tracts,  particularly  mentioned 
in  the  first  count  in  the  declaration,  may,  for  anything  that  appears 
to  the  contrary,  reside  in  the  plaintiff ;  the  defendant  had  a  title  to 
such  proportions  of  those  tracts  when  he  conveyed  them,  and  that 
title  must  have  actually  passed  by  the  deed.  The  plaintiff  has  never 
offered  to  rescind  the  sale ;  nor  if  he  had,  do  I  perceive  how  it  would 
have  availed  him  in  a  court  of  law,  since  the  contract  was  executed 
and  part  of  the  consideration  fulfilled.  I  am  not  aware  that  even  a 
court  of  equity,  in  England,  has  ever  undertaken  to  rescind  a  sale 
because  the  title  to  a  part  of  the  property  failed ;  though  I  admit 
there  may  be  cases  in  which  it  would  be  extremely  just,  and  that 
the  doctrine  prevails  in  countries  under  the  influence  of  the  civil 
law.  The  case  of  an  exchange  of  land  is  an  exception  at  the  com- 
mon law ;  for  there  if  A.  give  in  exchange  three  acres  to  B.  for  other 
three  acres,  and  afterwards  one  acre  is  evicted  from  B.,  in  this  case 
all  the  exchange  is  defeated,  as  the  exchange  is  upon  a  condition  in 
law,  that  the  title  to  each  part  shall  remain  entire,  and  it  is  the  office 
of  a  condition  to  defeat  the  whole  and  not  a  part  (Bustard's  Case,  4 
Co.  121,  b).  The  case  of  an  exchange  and  of  a  partition  depend 
upon  this  implied  condition,  which  seems  not  to  have  been  extended 
and  applied  to  other  assurances  of  land.  But  without  pursuing  this 
point  further,  or  giving  any  definitive  opinion  of  the  court  on  the 
general  question,  it  is  sufficient  to  observe,  that  there  was  nothing  in 


32  REAL  ESTATE. 

this  case  to  authorize  the  plaintiff  to  go  for  the  whole  consideration 
"because  the  title  to  part  failed.  That  fact  alone  did  not  rescind  the 
Bale  after  the  deed  was  delivered  and  the  consideration  paid.  The 
plaintiff  was  entitled  to  recover  damages  only  in  proportion  to  the 
extent  of  the  defect  of  title.  This  is  an  old  and  well  settled  rule  of 
damages ;  thus  in  the  case  of  Beauchamp  v.  Damory  (Year  Book,  29 
Ed.  Ill,  4),  it  was  held  by  Hill,  J.,  that  if  one  be  bound  to  warranty, 
lie  warrants  the  entirety;  but  he  shall  not  render  in  value,  but  for 
that  which  was  lost.  In  13  Ed.  IV,  3  (and  which  case  is  cited  in 
Bustard's  Case),  the  same  principle  was  admitted ;  and  it  was  de- 
clared and  agreed  to  by  the  court,  that  in  exchange,  where  a  want 
of  title  existed  as  to  part,  the  party  evicted  might  enter  as  for  a  con- 
dition broken,  if  he  chose ;  but  if  he  sued  to  recover  in  value,  he 
should  recover  only  according  to  the  value  of  the  part  lost.  Though 
the  condition  be  entire  and  extends  to  all,  yet  it  was  said  that  the 
warranty  upon  the  exchange  might  severally  extend  to  part.  So  in 
the  case  of  Gray  v.  Briscoe  (Noy,  142),  B.  covenanted  that  he  was 
seized  of  Blackacre  in  fee,  whereas  in  truth  it  was  copyhold  land  in 
fee,  according  to  the  custom  ;  and  the  court  said'  that  the  jury  should 
give  damages  according  to  the  difference  in  value  between  fee  simple 
land  and  copyhold  land.  There  is  then  no  law  or  reason  why  the 
plaintiff  should  recover  more  than  one-sixth  of  the  consideration 
money  and  interest,  for  the  two  tracts  mentioned  in  the  first  count, 
and  five-sixths  of  the  consideration  money  and  interest  for  the  tract 
contained  in  the  second  count. 

Another  question  in  the  case  is,  whether  the  defendant  ought 
not  to  have  been  permitted  to  show  that  the  lands  in  the  deed  of 
1795,  of  which  there  was  a  failure  of  title,  were  of  inferior  quality 
to  the  other  lands  conveyed  by  the  same  deed.  This  appears  to  be 
reasonable;  and  the  rule  would  operate  with  equal* justice  as  to  all 
the  parties  to  a  conveyance.  Suppose  a  valuable  stream  of  water 
with  expensive  improvements  upon  it,  with  10  acres  of  adjoining 
barren  land,  was  sold  for  $10,000 ;  and  it  should  afterwards  appear 
that  the  title  to  the  stream  with  the  improvements  on  it  failed,  but 
remained  good  as  to  the  residue  of  the  land,  would  it  not  be  unjust 
that  the  grantee  should  be  limited  in  damages  under  his  covenants, 
to  an  apportionment  according  to  the  number  of  acres  lost,  when 
the  sole  inducement  to  the  purchase  was  defeated ;  and  the  whole 
value  of  the  purchase  had  failed  ?  So,  on  the  other  hand,  if  only  the 
title  to  the  nine  barren  acres  failed,  the  vendor  would  feel  the  weight 
of  extreme  injustice  if  he  was  obliged  to  refund  nine-tenths  of  the 
consideration  money.     This  is  not  the  rule  of  assessment.     The  law 


MORRIS  v.  PHELPS.  33 

will  apportion  the  damages  to  the  measure  of  value  between  the  land 
lost  and  the  land  preserved.  This  doctrine  is  laid  down  as  an  ele- 
mentary rule  in  Pothier's  treatise  on  the  contract  of  sale  (Traite  du 
Contrat  de  Yente,  No.  99,  139,  142).  He  says,  that  an  eviction  of 
part  of  the  thing  sold,  not  only  gives  an  action  on  the  warranty,  but 
the  purchaser  will  recover  a  proportion  of  the  price  paid,  in  a  ratio 
to  the  amount  of  the  part  from  which  he  was  evicted,  and  that  if 
the  eviction  be  of  an  integral  part  of  the  estate  sold,  as  for  instance, 
of  a  meadow  or  vineyard  belonging  to  the  farm,  the  damages  must 
be  assessed  according  to  a  valuation  of  the  price  of  the  meadow  or 
vineyard,  and  the  proportion  which  it  bears  to  the  price  of  the 
whole  estate.  Nothing  can  be  clearer  than  the  equity  of  this 
rule. 

The  same  principle  is  to  be  met  with  in  the  civil  law.  Bonitatis 
cestimationem  faciendum,  cum  pars  evincitur.  And  Ulpian  puts 
and  answers  this  question  :  quid  enirii,  si,  quod  fuit  in  agro  jpretio- 
sissimum,  hoc  evictum  est  /  aut  quod  fuit  in  agro  vilis&imum?  cesti- 
mdbitur  loci  qualitas,  et  sic  erit  regressus  (Dig.  21,  2,  1.  1,  1.  13  and 
1.  64,  §  3).  The  recovery  in  value  upon  the  warranty  at  common 
law  was  regulated  by  the  same  rule.  The  capias  ad  valentiam  was 
issued  to  take  as  much  land  of  the  warrantor  as  was  equal  to  the 
value  of  the  lands  lost.  Cape  de  terra  in  balliva  tua  ad  valentiam 
tantce  term  quod IB.  clamat  ut  jus  suum  /  and  if  the  lands  of  the 
warrantor  lay  in  another  county,  different  from  that  in  which  the 
lands  in  controversy  lay,  then  the  lands  in  question  were  first  ap- 
praised by  a  sheriffs  inquest,  and  afterwards  the  writ  went  to  the 
sheriff  of  the  other  county,  to  take  lands  of  equal  value,  which  value 
was  specified  in  the  writ  (Bracton,  3S4,  a,  b).  If  the  recovery  in  the 
present  case  had  been  of  an  undivided  part  of  all  the  lands  conveyed 
by  the  deed,  then  the  rule  of  apportionment  of  damages  according 
to  the  relative  value  could  not  have  applied ;  and  this  distinction 
runs  through  the  authorities  on  the  subject.  But  the  plaintiff's  title 
failed  only  to  an  undivided  part  of  a  specified  tract,  and  remained 
good  to  another  and  larger  tract  conveyed  by  the  same  deed  and  in- 
cluded in  the  same  consideration.  The  apportionment  according  to 
the  relative  value  is  therefore  strictly  and  justly  applicable. 

The  court  are  accordingly  of  opinion  that  the  verdict  be  reduced 
and  regulated  according  to  these  principles  ;  and  if  this  cannot  be 
done  by  agreement  of  the  parties,  a  new  trial  is  awarded,  with  costs 
to  abide  the  event. 

Rule  granted,  ut  supra. 
3 


34  REAL   ESTATE. 

Refusal  of  Yendee  to  receive  Deed. 


[1856.]      The  Old  Colony  Railroad  Corporation  v.  Evans 
(G  Gray  [72  Mass.]  25.) 

In  an  action  at  law  against  a  vendee,  to  recover  damages  for  the  breach  of  a  contract 
to  purchase  land,  the  measure  of  damages  is  the  difference  i  between  the  contract 
price  and  the  price  for  which  the  land  could  have  been  sold  at  the  time  of  the 
breach. 

Dewey,  J.,  after  discussing  some  questions  not  relating  to  the 
measure  of  damages,  continued  as  follows  : 

No  doubt  a  remedy  exists  at  law  for  breach  of  a  contract  to  pur- 
chase real  estate.  The  only  doubt  is  as  to  the  extent  and  perfectness 
of  the  remedy.  It  is  said,  on  the  part  of  the  defendant,  to  be  fully 
adequate,  because  all  that  is  or  can  be  sought  by  the  plaintiffs  is  the 
payment  of  money,  and  courts  of  law  can  render  judgment  for  the 
full  damages  in  money. 

The  reply  to  this  part  of  the  defense  must  depend  upon  the.  view 
we  take  of  the  rule  of  damages  in  an  action  at  law  on  such  a  con- 
tract. If  it  be  held,  as  is  supposed  by  the  counsel  for  the  defendant, 
that  the  vendee  is  to  be  charged  with  the  whole  amount  of  the  pur- 
chase money  in  an  action  at  law,  if  he  refuses  to  perform  such  a 
contract,  the  result  as  to  the  damages  would  be  the  same  as  in  pro- 
ceedings in  equity. 

But  we  apprehend  that  that  rule  of  damages,  however  applicable 
it  may  be  to  cases  of  contracts  for  the  sale  of  personal  property, 
where,  by  force  and  effect  of  a  mere  delivery,  or  by  a  judgment  at 
law  for  the  value  of  an  article,  the  property  may  become  vested  in 
the  party  paying  damages  therefor,  does  not  apply  to  real  estate, 
which  can  only  be  transferred  by  deed.  In  actions  against  a  vendee, 
on  a  contract  for  the  purchase  of  real  estate,  we  had  supposed  it  to 
be  a  well  settled  rule,  that,  when  a  party  agrees  to  purchase  real 
estate  at  a  certain  stipulated  price,  and  subsequently  refuses  to  per- 
form his  contract,  the  loss  in  the  bargain  constitutes  the  measure  of 
damages,  and  that  is  the  difference  between  the  price  fixed  in  the 
contract  and  the  salable  value  of  the  land  at  the  time  the  contract 
was  to  be  executed. 

The  examination  of  the  authorities  upon  this  subject  does  not 
show  an  entire  uniformity  of  views.  The  rule  we  have  stated  is 
said  by  Mr.  Sedgwick  to  be  the  English  rule  (Sedgwick  on  Dam- 
ages [2d  ed.],  190.     See  Laird  v.  Pirn,  7  M.  &  W.  474,  where  this 


THE   OLD   COLONY   RAILROAD   CORPORATION  v.  EVANS.  35 

subject  is  much  discussed).  In  Alna  v.  Plummer  (4  Greenl.  258), 
which  was  a  contract  for  the  sale  of  a  pew  in  a  meeting-house,  it  was 
held  that,  upon  a  tender  of  a  deed,  the  vendor  might  recover  the 
full  price,  though  the  other  party  refused  to  accept  the  same.  The 
question  was  however  apparently  very  little  discussed.  In  some  of 
the  New  York  cases,  as  in  Franchot  v.  Leach  (5  Cow.  506),  it  seems 
to  be  assumed  that  the  vendor  would  recover  the  whole  price  agreed 
to  be  paid,  if  he  was  ready  to  fulfill  the  contract  on  his  part.  The 
English  rule  seems  to  be  recognized  in  Sawyer  v.  Mclntyre  (18 
Term.  27). 

Several  cases  from  our  own  reports  are  relied  upon  by  the  de- 
fendant, as  sustaining  the  position  that  relief,  in  a  case  like  the 
present,  should  be  sought  solely  in  a  court  of  law. 

The  case  of  Sears  v.  Boston  (16  Pick.  357),  arose  upon  a  contract 
in  which  the  defendants  agreed  to  remove  a  bank  of  gravel  from  the 
land  of  the  plaintiff,  and  pay  him  therefor  at  the  rate  of  one  dollar 
a  square.  The  contract  was  only  partially  performed,  and  plaintiff 
brought  his  bill  for  a  specific  performance.  Certain  difficulties  arose 
preventing  the  performance  of  the  work  in  the  manner  anticipated, 
and  the  defense  was  principally  put  upon  a  change  of  circumstances, 
and  the  court  held  that  the  specific  performance  of  a  contract  was 
not  to  be  enforced,  "  where,  through  inadvertence  or  mistake,  or  by 
the  intervention  of  unforeseen  causes,  the  performance  becomes  im- 
possible or  unreasonable."  Although  the  court  remark,  in  the  opin- 
ion in  that  case,  that  "  if  the  plaintiff  had  sustained  any  damages  by 
the  non-completion  of  the  contract,  it  might  be  fully  compensated  in 
damages,"  yet  they  do  not  intimate  that  those  damages  would  be  the 
entire  sum  agreed  to  be  paid  for  the  gravel. 

The  case  of  Gill  v.  Bicknell  (2  Cush.  358)  more  distinctly  sustains 
the  position  that,  in  case  of  the  tender  of  a  deed  by  one  party  and  a 
refusal  by  the  other  to  receive  it,  the  measure  of  damages  would  be 
the  money  stipulated  to  be  paid  for  the  land,  and  thus  the  party 
would  have  an  adequate  remedy  at  law  in  such  cases.  This  was  said 
however  in  a  case  where  the  court  had  already  stated  that  the  bill  in 
equity  could  not  be  maintained,  for  the  reason  that  no  written  con- 
tract had  ever  been  executed  by  the  defendant. 

The  case  of  Jacobs  v.  Peterborough  &  Shirley  Railroad  (8  Cush. 
223)  was  much  to  the  same  effect,  and  the  suggestion  was  there 
made  under  similar  circumstances  as  in  the  case  last  cited.  The 
court  there  also  had  announced  the  opinion,  that  the  case  failed  to 
show  that  the  defendant  had  ever  signed  any  contract  agreeing  to 
purchase  the  land.    Having  done  so,  they  state  as  a  further  objection 


36  REAL  ESTATE. 

that  the  remedy  at  law  would  be  complete,  as  the  agreed  price  might 
be  recovered  in  an  action  at  law.  In  neither  of  these  two  last  cases 
was  this  question  essential  to  the  decision. 

Upon  more  full  consideration  of  the  question  of  the  measure  of 
damages  in  an  action  at  law,  where  the  defendant  has  refused  to  re- 
ceive the  deed  tendered  him,  the  court  are  of  opinion  that  the  proper 
rule  of  damages  in  such  a  case  is  the  difference  between  the  price 
agreed  to  be  paid  for  the  land  and  the  salable  value  of  the  land  at 
the  time  the  contract  was  broken. 

The  rest  of  the  opinion  related  to  other  questions. 

See  Griswold  v.  Sabin,  51  N.  II.  167,  where  the  same  rule  was  held  (1871). 
In  Michigan,  where  the  vendor  of  land  breaks  his  contract  in  bad  faith,  the 
measure  of  the  vendee's  damages  is  the  value  of  the  land  at  the  time  of  the- 
breach.  If,  however,  the  vendor  acted  in  good  faith,  even  if  he  had  no  title,  and 
apparently  even  although  he  might  have  ascertained  at  the  time  of  making  the 
contract  that  he  could  not  obtain  one,  the  measure  is  reduced  to  the  considera- 
tion money  and  interest,  with  perhaps  the  expense  of  investigating  the  title. 
Hammond  v.  Hannen,  21  Mich.  374  (1870). 

The  rule  in  New  York  is  somewhat  different.  See  note  to  the  case  of  Bain  v. 
Fothergill,  L.  R.  7  Eng.  &  Ir.  App.  158,  infra. 


Extent  of  Recovery  for   Breach  of   Covenant  against 
Incumbrances. 


[1859.]  Greene  v.  Tallman  (20  X.  Y.  191). 

When  a  purchaser  of  incumbered  land  has  not  paid  off  the  incumbrance,  but  has  remained 
in  quiet  possession  of  the  land,  he  cannot  be  relieved  against  his  contract  to  pay 
the  purchase  money  in  whole  or  in  part,  on  the  ground  of  defect  of  title. 

It  is  only  in  cases  of  fraud  that  a  grantee  of  land,  who  has  sustained  damages  by  reason 
of  the  liability  of  the  land  for  contribution  towards  the  payment  of  quit-rents,  can 
recoup  as  such  damages  the  difference  between  what  he  obtained  for  the  land  and 
what,  but  for  the  incumbrance,  he  might  have  obtained  for  it. 

In  other  cases,  parties  can  only  be  entitled  to  the  amount  payable  on  the  incumbrance,  or, 
where  that  amount  cannot  be  ascertained  by  calculation,  to  the  value  of  the  incum- 
brance, to  which  amount  or  value  have  interestwill  be  added  in  case  the  purchaser 
have  not  occupied  or  enjoyed  the  premises. 

This  was  an  appeal  to  the  Court  of  Appeals  from  a  judgment 
rendered  on  the  finding  of  Mr.  Justice  Mitchell,  before  whom  the 
cause  was  tried  without  a  jury.     The  action  was  brought  to  fore- 


GKEENE  v.  TALLMAN.  37 

close  a  mortgage  on  a  lot  at  the  corner  of  Hammond  and  West 
streets,  in  New  York  city,  which  mortgage  had  been  given  by  the 
defendants,  Tallman  and  wife,  to  John  Greene,  dated  April  15th, 
1845,  to  secure  part  of  the  purchase  money  of  the  lot.  The  lot  had 
been  conveyed  by  the  plaintiff  to  the  defendant  Tallman,  for  the 
consideration  of  $6,000,  by  deed  dated  the  same  day  with  the  mort- 
gage, and  containing  covenants  of  warranty  and  against  incum- 
brances. 

The  defendants,  Tallman  and  wife,  defended  the  foreclosure  suit, 
on  the  ground  that  the  premises  were  subject  to  a  ground  rent. 

It  appeared  that  on  the  1st  of  May,  1821,  two  plots  of  ground 
had  been  conveyed  by  the  city  to  one  Abijah  Hammond,  subject  to 
a  ground  rent  of  $623.  These  plots  included  the  mortgaged  prem- 
ises. 

The  remainder  of  the  land  embraced  in  the  plots  was  subsequent- 
ly conveyed  by  Hammond  in  three  parcels,  to  three  different  gran- 
tees, and  by  each  conveyance  the  land  conveyed  was  subjected  to  the 
payment  of  a  certain  proportion  of  the  ground  rent  of  the  two  plots. 
By  these  three  conveyances  the  whole  rent  of  the  original  plots  was 
thus  apportioned  among,  and  made  a  charge  on  that  jDart  of  them 
which  was  not  included  in  the  mortgaged  premises,  although  these 
premises  were  not  otherwise  relieved  from  their  original  liability  for 
the  rent. 

In  1815  the  whole  ground  rent  for  that  year  was  charged  by  the 
city  to  the  proprietors  of  the  premises  not  included  in  the  mortgage. 
Neither  Greene  nor  Tallman  had  ever  paid  any  part  of  the  ground 
rent,  and,  as  was  admitted  on  the  trial,  these  premises,  consisting  of 
twelve  lots,  which  were  worth  $51,000  in  the  aggregate,  or  $1,500 
each,  were  ample  security  for  the  rents  charged  on  them. 

In  March,  1853,  the  comptroller  of  the  city  gave  notice  that,  in 
pursuance  of  an  ordinance  of  the  common  council,  where  ground 
rents  were  charged  conjointly  on  lands  held  in  severalty,  he  would 
commute  for  the  rent  of  any  such  lands,  provided  that  the  amount 
to  be  paid  for  a  release  should  not  be  less  than  that  charged  by  any 
previous  arrangements  of  the  owners  on  the  portion  of  land  to  be  re- 
leased. At  the  time  of  the  trial  the  sum  of  $3,365  09  remained  un- 
paid, and  there  was  some  evidence  for  the  defense  tending  to  show 
that  the  incumbrance  of  the  quit-rent  had  prevented  a  sale  of  the 
mortgaged  premises  for  $7,500,  and  had  also  reduced  their  value 
about  $2,000. 

S.  B.  Strong,  J. — There  can  be  no  doubt  that  if  the  charge  of 
fraud  preferred  against  Greene  in  the  answer  had  been  proved,  Tall- 


38  REAL  ESTATE. 

man,  if  he  had  not  sold  the  property,  would  have  been  entitled  to  re- 
coup in  this  suit  to  the  extent  of  his  actual  damage ;  and  if  that  had 
exceeded  or  equaled  the  amount  of  the  mortgage,  it  would  have 
constituted  an  entire  defense.  But  there  was  no  attempt  to  show 
any  fraud,  nor  was  there  anything  in  the  evidence  from  which  it 
could  be  inferred,  on  the  trial. 

In  the  absence  of  fraud,  a  party  who  has  purchased  real  estate, 
and  received  a  deed  for  it  containing  a  covenant  that  it  is  free  from 
any  incumbrance,  and  has  subsequently  paid  off  and  discharged  an 
incumbrance,  may  set  off  what  has  been  paid  by  him  against  the 
amount  due  on  any  mortgage  for  the  purchase  money.  In  order  to 
avail  himself  of  such  defense,  however,  he  would  be  bound  to  prove 
either  that  what  had  been  paid  by  him  was  actually  due,  or  that  he- 
had  given  notice  to  his  vendor  requiring  that  such  vendor  should 
pay  off  the  incumbrance  within  a  limited  time,  or  that  otherwise  the 
purchaser  would  pay  a  specified  amount.  Some  of  the  authorities 
lay  down  the  rule  that  the  purchaser  may  set  off  or  recover  the 
amount  paid  without  any  qualification ;  but  it  seems  to  me  reason- 
able that  a  vendor  who  has  been  innocent  of  any  fraud  should  have 
an  opportunity  to  set  himself  right  before  he  should  be  obliged  to 
pay  or  allow  more  than  the  amount  actually  due.  It  is,  I  think, 
well  settled  that  where  the  incumbrance  has  not  been  paid  off  by 
the  purchaser  of  the  land,  and  he  has  remained  in  quiet  and  peace- 
able possession  of  the  premises,  he  cannot  have  relief  against  his 
contract  to  pay  the  purchase  money,  or  any  part  of  it,  on  the  ground 
of  defect  of  title.  The  reason  is,  that  the  incumbrance  may  not,  if 
let  alone,  ever  be  asserted  against  the  purchaser,  as  it  may  be  paid 
off  or  satisfied  in  some  other  way  ;  and  then  it  would  be  inequitable 
that  any  part  of  the  purchase  money  should  be  retained.  The  cir- 
cumstances of  this  case  furnish  a  strong  illustration  of  the  reason- 
ableness of  the  principle.  It  is  quite  apparent  that  there  is  no  prob- 
ability that  the  owner  of  the  mortgaged  premises  will  ever  be  called 
upon  to  pay  any  part  of  the  quit-rents.  There  is  a  mere  possibility 
that  a  claim  may  be  made  by  the  city  corporation  ;  but  in  such  case 
the  existing  owner  may,  by  a  complaint  in  equity,  coerce  the  entire 
payment  out  of  the  other  portions  of  the  lands  conveyed  to  Ham- 
mond ;  and  if  he  could  not  do  that,  a  recovery  against  him  would 
enable  him  to  sue  for,  or  recoup,  the  fair  value  of  the  entire  incum- 
brance. 

The  defendants  Tallman  and  wife  seek  to  recoup  the  damages 
sustained  by  them  by  reason  of  the  liability  of  the  land  for  contri- 
bution towards  payment  of  the  quit-rents,  and  estimate  such  dam- 


GREENE  v.  TALLMAN.  39 

ages  at  the  difference  between  what  he  obtained  and  what,  but  for 
the  incumbrance,  he  might  have  obtained  for  the  lot.  But  such  is 
not  the  rule,  except  in  cases  of  fraud.  Parties  in  other  cases  can 
only  be  entitled  to  the  amount  actually  payable  on  such  incum- 
brance, or,  where  the  amount  cannot  be  ascertained  by  calculation^ 
to  its  value.  In  the  case  of  Dimmick  v.  Lockwood  (10  Wend.  155), 
Chief  Justice  Savage  remarked  that  "  in  all  the  cases  which  have 
been  cited,  there  is  none  in  our  own  courts  where  the  purchaser  has 
been  permitted  to  recover  beyond  the  consideration  and  interest  and 
costs.  There  is  none  in  Massachusetts  where,  under  the  covenant 
against  incumbrances,  the  purchaser  has  recovered  any  more,  though 
there  the  rule  allows  a  recovery  for  the  value  at  the  time  of  the 
eviction.  All  the  reasoning  of  our  own  judges  goes  to  limit  the  re- 
sponsibility of  the  grantor  to  the  consideration,  with  interest  and 
costs ;  and  I  am  unwilling  to  go  further  where  the  principle  to  be 
established  may  lead  to  greater  injustice."  That  was  an  action  for 
the  breach  of  a  covenant  in  a  deed  of  land  that  it  was  free  from  in- 
cumbrances, and  the  decision  was  that  the  recovery  should  be  limited 
to  a  portion  of  the  consideration  equivalent  to  the  extent  of  the  in- 
cumbrance, and  not  include  the  enhanced  value  of  the  land  in  con- 
sequence of  subsequent  improvements.  The  same  is  true  in  cases 
where  there  has  been  a  general  advance  in  the  price  of  real  estate.  I 
am  satisfied  that  the  established  rule  in  such  cases  is,  that  the  recov- 
ery, when  any  can  be  had,  must  be  restricted  to  the  actual  amount 
or  value  of  the  incumbrance,  and,  where  the  purchaser  has  not  occu- 
pied or  enjoyed  the  premises,  the  interest.  No  consequential  dam- 
ages are  allowed.  The  reason  given  is,  that  when  the  incumbrance 
is  actually  unknown  to  the  vendor,  as  is  generally  the  case  where  he 
covenants  against  them,  the  means  of  discovering  them  are,  or  with 
proper  exertions  may  be,  equally  accessible  to  both  parties.  If  the 
intended  purchaser  should  make  proper  examination,  he  would  ordi- 
narily discover  an  incumbrance,  which  must  be  in  writing,  and  the 
evidence  on  record  ;  and  should  he  neglect  to  do  that,  he  cannot  rea- 
sonably claim  any  more  than  an  exemption  from  positive  loss.  Now, 
what  is  the  value  of  a  lien  specifically  upon  the  lot  in  question  % 
Under  the  circumstances,  it  is  nothing.  What  is  the  actual  loss  to 
the  defendant,  Tallman  ?  That,  too,  is  nothing.  He  was  to  pay  or 
allow,  in  all,  $6,000  for  the  lot.  He  occupied  it  without  the  pay- 
ment of  any  part  of  the  quit-rent  until  his  sale  to  Bradford,  when  he 
obtained  for  it  $8,000.  He  entered  into  no  covenants  in  his  deed, 
and,  as  the  purchaser  was  not  deceived  as  to  the  incumbrance,  Tall- 
man  is  under  no   obligation   to    return  any  part   of   the  purchase 


40  REAL  ESTATE. 

money,  should  the  lien  for  any  part  of  the  rent  be  enforced  against 
the  premises.  The  demand  was  not  enforced  against  him  while  he 
owned  the  lot,  nor  has  it  been  since,  nor  can  it  be  now.  He  might, 
it  is  true,  be  subjected  to  a  judgment,  if  there  should  not  be  enough 
in  the  proceeds  of  the  land  to  satisfy  the  debt  and  costs.  But  con- 
sidering what  he  alleges  to  be  the  value  of  the  premises,  there  is  not 
enough  of  probability  of  there  being  a  deficiency  to  form  the  basis 
of  any  action.  Possibly  the  judgment  might  have  been  so  qualified 
as  to  relieve  him  from  any  such  liability,  if  lie  had  asked  for  it ;  but 
he  did  not.  I  think  that,  under  the  circumstances,  the  defendant's 
claim  to  recoup  or  set  off  damages  was  properly  rejected. 

The  assignment  from  Greene  vested  in  the  plaintiff  the  legal 
title  to  the  securities.  He  was  the  legal  owner  when  this  suit  was 
instituted,  and  the  suit  was  rightly  commenced  in  his  name.  It 
could  be  legally  continued  in  his  name,  notwithstanding  his  having 
received  the  debt  for  which  the  securities  had  been  assigned  to  him. 
(Code,  §  121.) 

The  judgment  should  be  affirmed. 

All  the  judges  (except  Selden,  J.,  who  was  not  present),  concur- 


ring. 


Judgment  affirmed. 


'.- 


In  an  action  for  broach  of  the  covenant  of  warranty  for  quiet  enjoyment,  it  is 
■well  settled  that  the  rule  of  damages,  where  there  has  been  an  actual  loss  of  the 
premises,  is  the  purchase  money  and  interest.  "Where  the  plaintiff  has  actually 
purchased  the  paramount  title,  it  is  the  sum  actually  and  in  good  faith  paid  for 
the  paramount  title,  and  the  amouut  expended  in  defending  his  possession,  pro- 
vided such  damages  shall  in  no  case  exceed  the  purchase  money  and  interest. 
McGary  v.  Hastings,  39  Cal.  3G0  (1870). 


Executory  Contract  of  Sale  ;  Damages  agaesbt  Yexdor  ;  "Waste. 


[1873]  Worral  v.  Munn  (53  N.  Y.  185). 

When  a  vendor  of  land  refuses  to  deliver  it  to  the  vendee,  according  to  his  contract,  the 
vendee  may,  if  the  purchase  money  have  not  been  paid,  elect  either  to  pay  the  inter- 
est on  the  purchase  money  during  the  time  he  has  been  wrongfully  deprived  of  pos- 
session of  the  premises,  and  take  the  rents  and  profits  which  have  or  might  have 
been  received  by  the  owner  during  the  same  time,  or  he  may  allow  the  vendor  to 
keep  the  rents  and  profits,  in  which  case  the  vendee  will  be  exempted  from  the  pay- 
ment of  interest. 


WORRAL  v.  MUXN.  41 

When  waste  has  been  committed  by  a  vendor  pending  a  contract  of  purchase,  the  dete- 
rioration in  the  value  of  the  land  is  an  appropriate  method  of  fixing  the  amount  of 
the  injury,  and  in  particular  cases  it  may  be  the  only  way  in  which  compensation 
for  the  waste  can  be  given,  but  it  is  not  the  exclusive  measure  of  relief.  In  equity, 
everything  which  forms  a  part  of  the  inheritance  belongs  to  the  purchaser  from  the 
date  of  the  contract  of  purchase,  and  a  court  of  equity  will,  in  an  action  for  specific 
performance,  adjust  the  rights  and  liabilities  of  the  parties  on  this  assumption 
(Geover,  J.,  dissenting). 

Tliis  was  an  appeal  to  the  Court  of  Appeals  of  New  York,  from 
a  judgment  in  favor  of  the  plaintiff,  directing  the  specific  perform- 
ance of  a  contract  for  the  conveyance  of  lands. 

The  case  had  twice  previously  been  before  the  court  (5  jSL  Y. 
229,  and  38  K  Y.  138). 

The  material  facts  appear  in  the  opinion  of  the  court. 

Andrews,  Justice. — The  judgment  rendered  by  this  court  in  this 
case,  in  March,  1868  (38  N.  Y.  138),  reversing  the  judgment  of  the 
Supreme  Court  and  remitting  the  cause  to  that  court  for  the  reas- 
sessment of  the  plaintiff's  damages,  declared  with  great  distinctness 
the  basis  upon  which  the  court  should  proceed  in  making  the  assess- 
ment. The  court  was  directed  to  allow  the  interest  on  the  purchase 
money  paid  by  the  plaintiff  from  the  time  of  the  payment  to  the 
time  he  was  let  into  possession  of  the  premises  in  1859,  together 
with  simple  interest  on  each  annual  payment  of  interest  from  the 
termination  of  the  year  in  which  it  was  paid  to  the  time  of  the  as- 
sessment, as  the  plaintiff's  damages  for  being  kept  out  of  the  posses- 
sion. The  judgment  also  directed  that  in  ascertaining  the  damage 
sustained  by  reason  of  waste  committed  by  the  defendant,  the  court 
should  allow  to  the  jJaintiff  the  "  actual  value  of  the  clay  and  sand 
taken  from  the  premises  by  the  defendant,  and  of  any  timber  or  trees 
cut  thereon  and  removed  by  him,"  with  interest  on  such  value  from 
the  time  the  plaintiff  was  let  into  possession  until  the  time  of  the  as- 
sessment. 

No  application  for  a  rehearing  was  made,  or  to  correct  the  judg- 
ment. The  parties  subsequently  proceeded  to  the  assessment  of  the 
damages  before  a  referee  appointed  by  the  court,  and  after  a  pro- 
tracted hearing  the  referee  reported  that  the  damages  sustained  by 
the  plaintiff  for  being  kept  out  of  possession  of  the  premises,  were 
$10r894  58  (the  interest  on  the  purchase  money  paid  from  the  time 
of  the  payment  to  the  date  of  the  report,  computed  as  directed  in 
the  judgment),  and  that  the  defendant,  in  the  years  1844,  1845.  1846 
and  1847,  had  taken  and  removed  from  the  premises  clay  and  sand 
of  the  value  of  $3,120,  and  timber  of  the  value  of  $421.  Judgment 
was  entered  upon  the  report  in  favor  of  the  plaintiff,  for  the  aggre- 


42  REAL   ESTATE. 

gate  amount  of  the  several  sums  so  reported  by  the  referee,  together 
with  interest  on  the  value  of  the  materials  taken  from  the  premises 
by  the  defendant,  from  September  20,  1859  (the  day  when  the 
plaintiff  was  let  into  possession),  to  the  date  of  the  report.  This 
judgment  having  been  affirmed  at  general  term,  the  defendant  brings 
this  appeal,  and  he  asks  for  a  reversal  of  the  judgment  on  the  ground 
that  the  rental  value  of  the  premises,  for  the  ordinary  purposes  of 
husbandry,  is  the  only  criterion  of  damages  for  keeping  the  plaintiff 
out  of  possession,  and  that  the  diminished  value  of  the  land,  and  not 
the  value  of  the  materials  taken  therefrom,  is  the  measure  of  the 
compensation  to  which  the  plaintiff  is  entitled  for  the  injury  in  the 
nature  of  waste  committed  by  the  defendant.  The  judgment  of  this 
court,  on  the  former  appeal,  was  adverse  to  the  defendant  upon  both 
the  points  urged  for  the  reversal  of  this  judgment.  The  court  be- 
low, in  making  the  assessment,  acted  in  strict  conformity  to  the  di- 
rections of  this  court,  and  the  judgment  should  be  affirmed  on  the 
principle  of  stare  decisis,  unless  there  was  a  plain  error  committed 
by  this  court  in  declaring  or  applying  the  rules  of  law  applicable  to 
the  case,  or  unless  the  point  determined  was  not  involved  in  the  case 
before  it,  or  unless  there  are  new  facts  which  subvert  the  ground  of 
the  former  judgment  and  change  the  character  or  measure  of  relief 
to  which  the  plaintiff  is  entitled.  The  deliberate  judgment  of  the 
court  of  final  resort  ought  not  to  be  departed  from  except  for  strong 
reasons,  and  the  public  policy,  which  is  subserved  by  stability  in  ju- 
dicial decisions,  especially  requires  that  the  court  shall,  in  the  absence 
of  manifest  error  therein,  adhere  to  the  rule  of  law  declared  in  a 
particular  case  where  the  same  question  arises  upon  the  same  facts 
and  between  the  same  parties  in  another  litigation.  The  rule  de- 
clared by  this  court  on  the  former  appeal,  that  the  plaintiff  was  en- 
titled to  interest  on  the  purchase  money  paid  by  him,  as  damages 
for  being  kept  out  of  possession  of  the  premises,  was  supported 
upon  reason  and  authority  in  the  able  opinion  of  Woodruff,  J.  It 
is  supposed,  however,  by  the  counsel  for  the  defendant,  that  the  ad- 
ditional facts,  claimed  by  him  to  have  been  shown  on  the  hearing 
before  the  referee — viz.,  that  no  profitable  use  could  have  been  made 
of  the  premises  for  brick  making  purposes  during  the  retention  of 
the  possession  by  the  defendant,  and  that,  in  fact,  no  use  was  made 
of  them  for  that  purpose  by  the  plaintiff  for  several  years  after  he 
obtained  possession,  and  that  the  premises  meanwhile  advanced  in 
value — change  the  legal  aspect  of  the  case,  and  require  that  the  dam- 
for  withholding  possession  be  limited  to  the  rental  value  of  the 


WORRAL  v.  MUNN.  43 

land  for  ordinary  uses,  as  the  plaintiff  lost  nothing  beyond  that  by 
being  deprived  of  the  possession. 

I  think  this  view  proceeds  upon  a  misconception  of  the  principle 
upon  which  courts  of  equity  adjust  the  rights  of  vendor  and  vendee, 
where  the  vendor  retains  the  possession  of  the  land  and  refuses  to 
deliver  it  according  to  his  contract.  If  the  purchase  money  has  not 
been  paid,  the  vendee  may  elect  either  to  pay  the  interest  on  the 
purchase  money  during  the  time  he  has  been  wrongfully  deprived 
of  the  possession,  and  take  the  rents  and  profits  received  or  which 
might  have  been  received  by  the  vendor  during  the  same  time,  or  he 
may  allow  the  vendor  to  retain  the  rents  and  profits,  in  which  case 
he  will  be  exempted  from  the  payment  of  interest.  It  is  not  be- 
cause the  rental  value  of  the  land  is,  or  is  supposed  to  be,  equal  to 
the  interest  on  the  purchase  money  that  the  right  of  election  is 
given.  It  is  often,  and  perhaps  in  most  cases  it  is  less.  But  the  en- 
joyment of  the  possession  of  the  land,  according  to  the  contract, 
may  be  of  more  value  to  the  purchaser,  or  he  may  regard  it  as  of 
more  value  to  him  than  the  amount  of  rents  and  profits  he  might 
realize  from  the  use.  The  possession  of  the  premises  by  the  pur- 
chaser is,  by  the  contract  of  sale,  treated  as  of  equal  value  to  him  as 
the  interest  on  the  purchase  money.  And  when  the  vendor  wrong- 
fully refuses  to  give  possession,  and  resists  the  performance  of  the 
agreement,  he  ought  not  to  be  allowed  to  reap  the  benefit  of  the 
contract  and  compel  the  vendee  to  pay  interest  on  the  purchase 
money,  if  it  turns  out  that  the  interest  exceeds  the  rental  value  of 
the  land.  In  this  case  the  purchase  money  was  paid  some  years  be- 
fore the  plaintiff  was  let  into  possession,  but  the  rule  of  damages  for 
willfully  withholding  the  possession  is  not  changed  by  that  fact. 
The  purchaser  is  entitled  to  be  allowed  the  interest  on  the  purchase 
money.  The  advantage  to  the  vendee  from  the  appreciation  in  the 
value  of  the  land,  was  incident  to  his  right  as  purchaser,  and  if  it  had 
fallen  in  value  the  loss  must  have  been  borne  by  him. 

The  new  facts  claimed  to  have  been  proved  do  not  affect  the  ap- 
plication to  the  case  of  the  rule  of  damages  for  withholding  the 
possession  of  the  premises  declared  by  the  court  on  the  former 
hearing. 

The  question  whether  the  damages  for  waste  committed  by  a 
vendor  pending  a  contract  of  purchase  should  be  measured  by  the 
injury  to  the  inheritance  occasioned  thereby,  or  by  the  value  of  the 
materials  taken  from  the  premises,  where  timber  has  been  cut  or 
stone  has  been  quarried  or  earth  removed  by  him,  or  whether  either 
method  may  be  adopted  in  ascertaining  the  damages,  was  not  partic- 


41  REAL   ESTATE. 

ularly  considered  in  the  opinion  of  Woodruff,  J.    The  former  appeal 
on  this  branch  of  the  case  related  to  the  time  from  which  interest 
should  he  computed  on  the  value  of  the  materials  taken.     It  was  as- 
sumed by  the  counsel  and  by  the  court  that  the  plaintiff  was  enti- 
tled to  recover  the  value,  and  no  question  was  made  in  respect  to  it. 
The  judgment,  as  has  been  seen,  specifically  adjudges  the  right  of 
the  plaintiff  to  recover  it.     It  is  not  denied  that  the  defendant  is 
liable  to  the  same  extent  as  the  vendor  would  have  been.      He  en- 
tered under  a  contract  with  him,  and  with  notice  of  the  plaintiff's 
rights,  and  the  waste  was  committed  pendente  lite.      It  is  clear,  I 
think,  that  the  deterioration  in  the  value  of  the  land  would  be  an 
appropriate  method  of  fixing  the  amount  of  the  injury.      In  some 
cases  it  would  be  the  only  way  in  which  compensation  for  waste 
could  be  given,  in  view  of  the  nature  of  the  plaintiff's  interest  and 
the  character  of  the  injury.     A  mortgagee  or  lienor  could  only  re- 
cover on  proof  that  his  security  was  rendered  inadequate  by  the  in- 
jury to  the  freehold.     If  the  soil,  having  no  value  separated  from 
the  land,  was  stripped  from  it,  so  as  to  render  it  unproductive  and 
unfit  for  the  use  to  which  it  was  applied,  the  diminished  value  of  the 
land  would  be  the  only  adequate  measure  of  compensation.     So,  also, 
where  trees  designed  for  shade  or  ornament  have  been  cut  down, 
whereby  the  value  of  the  land  has  been  greatly  lessened.      And  in 
cases  of  permissive  waste,  where  a  purchaser  has  been  kept  out  of 
possession,  and  the  land  has  suffered  from  lack  of  cultivation,  the 
court  would  compel  an  allowance  to  be  made  by  the  seller  for  the 
injury  to  the  land  (Foster  v.  Deacon,  3  Madd.  394 ;  3  Sug.  on  Vend. 
133).     But  the  diminished  value  of  the  land  is  not  the  exclusive 
measure  of  relief  for  an  injury  in  the  nature  of  waste  committed  by 
a  wrong-doer  on  the  land  of  another.     In  many  cases  it  would  sub- 
stantially exempt  him  from  responsibility.     Cutting  a  few  trees  on  a 
timber  tract,  or  taking  a  few  hundred  tons  of  coal  from  a  mine, 
might  not  diminish  the  market  value  of  the  tract,  or  of  the  mine, 
and  yet  the  value  of  the  wood  or  coal,  severed  from  the  soil,  might 
be  considerable.     The  wrong-doer  would,  in  the  cases  instanced,  be 
held  to  pay  the  value  of  the  wood  and  coal,  and  he  could  not  shield 
himself  by  showing  that  the  property  from  which  it  was  taken  was, 
as  a  whole,  worth  as  much  as  it  was  before  (Martin  v.  Porter,  5  M. 
<fe  W.  351 ;  Morgan  v.  Powell,  3  Ad.  &  El.  [N.  S.]  278 ;  Bennett  v. 
Thompson,  13  Ire.  146),     The  liability  of  the  vendor  who,  pending 
a  contract  of  purchase,  commits  waste  upon  the  premises  by  cutting 
timber,  trees,  or  removing  stone,  sand  or  clay  therefrom,  to  pay  or 
account  to  the  purchaser  for  the  value  thereof,  results,  I  think,  from 


BAIN  v.  FOTHERGILL.  45 

the  principle  that  in  equity  everything  which  forms  a  part  of  the  in- 
heritance belongs  to  the  purchaser  from  the  date  of  the  contract. 
The  purchaser  is  deemed  in  equity  to  be  the  owner  of  the  land,  and 
a  court  of  equity  will,  in  an  action  for  specific  performance,  adjust 
the  respective  rights  and  liabilities  of  the  parties  upon  this  assump- 
tion. I  am  satisfied  that  the  judgment  declaring  the  defendant  lia- 
ble for  the  value  of  the  sand,  clay  and  timber  taken  by  him  from  the 
premises  was  not  inadvertently  pronounced,  but  is  supported  by 
reason  and  authority,  and  I  shall  content  myself  by  citing  some  au- 
thorities bearing  on  the  subject,  without  further  discussion :  Nelson 
v.  Bridges,  2  Bea.  239  ;  Attersoll  v.  Stevens,  1  Taunt.  182 ;  De 
Yisme  v.  De  Visme,  1  McN.  &  G.  336  ;  Dart  on  Vend.  116  ;  3  Sug. 
on  Vend.  134 ;  Paine  v.  Meller,  6  Ves.  349  ;  Mooers  v.  Wait,  3 
Wend.  104. 

There  was  great  diversity  of  opinion  expressed  by  witnesses  on 
the  hearing  before  the  referee  as  to  the  value  of  the  brick  material 
taken  and  used  by  the  defendant,  but  it  cannot  be  said  that  the  find- 
ing of  the  referee  upon  that  subject  was  not  supported  by  evidence. 
I  am  of  opinion  that  the  judgment  should  be  affirmed.  If  this  opin- 
ion shall  be  concurred  in,  it  will  close  a  litigation  commenced  in  the 
Court  of  Chancery  nearly  thirty  years  ago,  and  which  has  passed  in 
its  various  stages  through  all  the  higher  courts  of  the  State,  and  is 
now  determined  by  a  tribunal  which  had  no  existence  when  the  ac- 
tion was  brought. 

The  judgment  should  be  affirmed. 

Allen,  Rapallo  and  Folger,  Justices,  concur.  Gkover,  Justice, 
dissents.     Church,  Chief  Justice,  and  Peckham,  Justice,  do  not  vote. 

Judgment  affirmed. 


Contract  for  Sale  of  Peal  Estate  ;  Breach  of  ;  Damages  for. 


[1874.]  Bain  v.  Fothergill  (L.  E.  7  Bug.  &  Ir.  App.  158 ;  43 
L.  J.  [ST.  S.]  Exch.  243  ;  31  L.  T.  [N.  S.]  387 ;  affi'g 
L.  R,  6  Exch.  59  ;   40  L.  J.  Exch.  34 ;   23  L.  T.  [N. 

S.]  670). 

Upon  a  contract  for  the  sale  and  purchase  of  a  real  estate,  if  the  vendor,  without  fraud, 
is  incapable  of  making  a  good  title,  the  proposing  purchaser  is  not  entitled  to  recover 
compensation  in  damages  for  the  loss  of  his  bargain. 

F.  was  in  possession  of  a  mining  royalty  under  a  written  agreement  for  a  lease,  of  which 


46  REAL   ESTATE. 

he  had  taken  an  assignment.  One  of  the  stipulations  of  the  agreement  was  that  H. 
(the  person  with  whom  the  agreement  was  originally  made)  should  not  assign  with- 
out the  license  of  the  lessors.  They  were  ready  to  consent  to  the  assignment  to  F. 
provided  he  would  execute  a  duplicate  of  the  agreement  containing  this  stipulation. 
Though  repeatedly  communicated  with  on  the  subject,  he  delayed  doing  so.  He  en- 
tered into  a  contract  with  B.  to  sell  his  interest  in.  the  royalty,  but  it  was  afterwards 
found  that  the  lessors  absolutely  refused  their  assent  to  the  transfer,  and  F.  was 
unable  to  perform  his  contract  with  B.  In  an  action  by  B.  against  F.  for  its  non- 
performance : 

Held,  that  B.  could  only  recover  the  expenses  he  had  incurred ;  not  damages  beyond 
them. 

Flureau  v.  Thornhill,  2  W.  Bl.  1078,  adopted  and  affirmed. 

Hopkins  v.  Grazebrook,  6  B.  <fc  C.  31,  overruled. 

Per  Lord  Chelmsford  : — The  rule  laid  down  in  Flureau  v.  Thornhill,  2  W.  Bl.  1078,  as  to 
the  limits  within  which  damages  may  be  recovered  upon  the  breach  of  a  contract  for 
the  sale  of  real  estate,  must  be  taken  to  be  without  exception.  If  a  person  enters  into 
a  contract  for  the  sale  of  real  estate,  knowing  that  he  has  no  title  to  it,  nor  any  means 
of  acquiring  it,  the  purchaser  cannot,  in  an  action  for  breach  of  the  contract,  recover 
damages  beyond  the  expenses  he  has  incurred.  Any  other  damages  must  be  the 
subject  of  an  action  for  deceit. 

Per  Lord  Hatiikrly  : — A  contract  for  the  sale  of  real  estate  is  very  different  from  a  con- 
tract for  the  sale  of  a  chattel.  In  the  former,  the  purchaser  knows  that  there  must, 
with  all  the  complications  of  the  English  law,  be  an  uncertainty  as  to  making  out 
a  good  title  ;  in  the  latter,  the  vendor  must  know  what  his  right  to  the  chattel  is. 

This  was  a  writ  of  error  on  a  judgment  of  the  Exchequer  Cham- 
ber, which  had  affirmed  a  previous  judgment  of  the  Court  of  Ex- 
chequer (Law  Rep.  6  Ex.  59)  in  an  action  brought  by  Bain  &  Pater- 
son  to  recover  damages  for  the  breach  of  an  agreement,  dated  the 
17th  of  October,  1867,  by  which  Fothergill  &  Hankey  undertook  to 
sell  and  transfer  to  Bain  &  Paterson  their  interest  in  a  certain  min- 
ing royalty  in  the  county  of  Cumberland,  known  as  "  Miss  Walter's 
Royalty." 

Anthony  Hill,  the  former  owner  of  the  Plymouth  Ironworks  at 
Merthyr  Tydvyl,  held  an  agreement  for  a  lease,  dated  the  19th  of 
October,  1861,  the  royalty  in  question.  The  lease  was  to  be  a  lease 
for  twenty-one  years,  as  from  the  20th  of  March,  1860,  at  a  rent  of 
£100  a  year  and  a  royalty  rent  of  2s.  2d.  per  ton  of  ore  raised.  Mr. 
Hill  died  in  August,  1862,  and  in  August,  1863,  his  executors  con- 
tracted with  Fothergill  &  Hankey  to  sell  them  his  interest  in  this 
agreement.  It  was  one  of  the  conditions  of  Hill's  agreement  that 
he  should  not  assign  or  sublet  without  the  assent  of  the  lessors. 
When  Hill's  executors  made  this  contract  with  Fothergill  &  Hankey, 
who  appeared  to  have  succeeded  him  at  the  Plymouth  Ironworks, 
they  applied  to  the  lessors  for  a  consent.  The  lessors  were  willing  to 
give  it,  provided  that  Fothergill  &  Hankey  would  themselves  exe- 
cute a  duplicate  of  the  assignment,  in  which  was  repeated  the  pro- 


BAIN  v.  F0THERG1LL.  47 

viso  that  they  were  not  to  underlease  or  assign  without  the  consent 
of  the  lessors.  A  consent  in  writing  was  accordingly  prepared  in 
duplicate,  and  on  the  16th  of  June,  1865,  one  part  was  executed  by 
the  lessors,  and  their  solicitors,  retaining  that  part,  sent  the  other 
part  to  the  solicitors  of  Fothergill  &  Hankey  to  obtain  the  execution 
of  it  by  their  clients.  It  was  not  executed  by  them,  although  there 
were  numerous  communications  on  the  subject,  and  had  not  been 
executed  by  them  at  the  time  when  they  entered  into  the  contract 
with  Bain  &  Paterson,  of  Harrington,  in  the  county  of  Cumberland, 
for  the  sale  of  their  interest  in  the  royalty.  The  contract  for  that 
sale  consisted  of  an  offer  and  acceptance.  The  important  parts  of  it 
were  these,  "  We  offer  to  sell  you  our  interest  in  the  '  Miss  Walter's 
Royalty,'  in  Cumberland,  on  the  following  terms :  £2,500  to  be  paid 
us  in  cash  on  our  handing  you  a  transfer  of  the  said  royalty,"  a  rent 
of  £300  a  year  during  the  remainder  of  the  term,  and  a  royalty  of 
Is.  a  ton  beyond  the  royalty  payable  under  the  original  agreement, 
such  additional  royalty  to  merge  in  the  additional  rent  of  £300  a  year, 
and  a  deposit  of  £250  was  to  be  paid  forthwith ;  to  which  was  added 
this  clause,  "  The  usual  covenants  for  our  protection  as  standing  be- 
tween our  lessors  and  you  to  be  made  by  you." 

This  offer  was  signed  by  Fothergill  for  himself  and  his  company, 
and  underneath  were  written  these  words,  "  We  accept  of  offer  on 
terms  stated.  Bain  &  Paterson."  The  deposit  was  forthwith  paid. 
Fothergill  wrote  and  signed  at  the  foot  of  the  agreement  these  words, 
"  I  confirm  this  (sic)  within  and  acknowledge  the  receipt  of  your  check 
for  £250."  Bowerbank,  the  agent  for  Miss  Walter's  Royalty  refused 
any  consent  till  the  required  duplicates  should  have  been  signed. 
Fothergill,  by  letter,  informed  him  that  the  interest  in  the  royalty 
had  been  disposed  of  to  Bain  &  Paterson,  and  requested  him  to  facil- 
itate the  needful  transfer.  In  a  letter  of  the  4th  of  November,  1867, 
addressed  to  Fothergill,  Bowerbank  said :  "  Yours  of  the  2d  to  hand, 
and  in  reply  beg  to  say  I  cannot  understand  how  you  could  dispose 
of  the  royalty  without  my  consent.  A  document  was  sent  on  the 
16th  of  June,  1865,  to  your  solicitors  in  London,  for  your  signature, 
which  has  not  yet  been  returned.  As  soon  as  that  document  is  re- 
turned, you  will  then  know  in  what  position  you  are  as  to  disposing 
of  the  royalty  without  our  consent." 

Several  letters  passed  between  the  parties,  and  on  the  13th  of 
November,  1867,  Fothergill  wrote  to  Bain  &  Paterson  a  letter,  in 
which  he  said,  "  To-day  for  the  first  time  I  have  seen  the  consent  to 
the  assignment  of  the  agreement  between  Joseph  Walters  and  others 
with  the  late  Mr.  Anthony  Hill  to  the  Plymouth  Iron  Company,  by 


43  REAL   ESTATE. 

which  I  learn,  for  the  first  time,  that  a  similar  consent  is  necessary 
between  the  Plymouth  Iron  Company  and  yourselves.  It  is  a  sad 
pity  that  we  should  have  both  been  ignorant  of  the  condition,  for  it 
appears  to  me  that  unless  the  consent  can  be  obtained  by  you,  our 
arrangement  of  the  17th  of  October  must  fall  through,  for  I  have 
evidently  made  no  impression  upon  Mr.  Bowerbank.  Please,  there- 
fore, to  try  what  you  can  do,  and  let  me  know,  as,  if  unsuccessful, 
we  must  return  you  the  deposit  money.  I  send  you  copy  of  consent 
to  the  assignment  referred  to,  and,  if  you  can  suggest  any  way  of 
overcoming  the  difficulty,  we  will  do  all  in  our  power  to  assist." 
Bain  6c  Paterson  answered  on  the  14th  of  November,  1867,  "We  do 
not  feel  disposed  to  give  up  the  contract,  and  it  appears  to  us  that 
the  onus  of  obtaining  license  from  lessors  lies  with  you,"  but  they 
promised  "  to  do  all  in  our  power  to  mediate  with  Mr.  Bowerbank." 
On  the  16  th  of  November,  Fothergill  wrote  again,  "  I  regret  much 
to  hear  of  your  non-success  with  Mr.  Bowerbank.  That  this  diffi- 
culty should  have  turned  up  is  most  vexatious  to  us,  but  your  Mr. 
Paterson  will  remember  that  when  he  commenced  the  negotiation 
with  me,  I  distinctly  and  repeatedly  told  him  that  I  was  not  informed 
upon  the  conditions  under  which  we  held  it.  I  cannot  therefore 
see  how  the  onus  lies  with  me.  As  you  put  it,  a  condition  exists  of 
which  I  certainly  knew  nothing,  exacting  a  consent  which  I  have  no 
means  of  obtaining,  and  which  I  am  advised  is  absolutely  essential  to 
action,  and  which  consent  both  you  and  I  have  tried  in  vain  to  ob- 
tain. Is  it  not,  therefore,  better  to  abandon  an  arrangement  which 
we  cannot  carry  through  ? " 

The  royalty  was,  in  September,  1868,  sold  by  Fothergill  &  Han- 
key,  through  the  intervention  of  Mr.  Bowerbank,  and  at  his  desire, 
to  a  Mr.  Stirling,  and  Mr.  Fothergill  offered  to  return  to  Bain  & 
Paterson  the  deposit  of  £250,  which  offer  was  not  accepted. 

Bain  &  Paterson  then  commenced  this  action,  in  which  they 
sought  to  recover  the  deposit,  interest,  and  expenses,  and,  in  addition, 
damages  for  the  loss  of  their  bargain.  The  defendants  paid  into 
court  a  sum  sufficient  to  cover  the  deposit,  interest,  and  expenses. 
The  facts  were  turned  into  a  special  case,  and  argued  before  the 
Court  of  Exchequer,  and  on  the  15th  of  November,  1870,  that  court 
pronounced  judgment,  declaring  that  the  claim  for  damages  was  not 
sustainable.  This  judgment  was  affirmed  in  the  Exchequer  Chamber, 
no  arguments  being  heard,  as  it  was  the  intention  of  the  parties  to 
bring  up  the  case  to  this  House. 

The  judges  were  summoned,  and  Mr.  Baron  Martin,  Mr.  Justice 


BAIN  t.    FOTHERGILL.  49 

Keating,  Mr.  Baron  Pigott,  Mr.  Justice  Brett,  Mr.  Justice  Denman, 
and  Mr.  Baron  Pollock  attended.* 

Lord  Chelmsford  proposed  the  following  questions  for  the  con- 
sideration of  the  judges  : 

1.  Whether,  upon  a  contract  for  the  sale  of  real  estate,  where- 
the  vendor,  without  his  default,  is  unable  to  make  a  good  title,  the 
purchaser  is  by  law  entitled  to  recover  damages  for  the  loss  of  his 
bargain  ? 

2.  Whether  the  actual  possession  of  the  property,  the  subject  of 
the  contract,  is  essential  to  bring  the  case  within  the  rule  laid  down 
in  Flureau  v.  Thornhill  (2  W.  Bl.  1078)  ? 

3.  Whether,  if  the  rule  of  law  is  correctly  laid  down  in  Flureau  v. 
Thornhill  (2  W.  Bl.  1078),  the  circumstances  of  the  present  case  dis- 
tinguish it  and  take  it  out  of  that  rule  ? 

Mr.  Baron  Martin  f  requested  time  to  consider  these  questions. 

Mr.  Baron  Pollock. — In  answer  to  the  first  question  submitted 
by  your  lordships  to  the  judges,  I  am  of  opinion  that  upon  a  contract 
for  the  sale  of  real  estate,  where  the  vendor,  without  his  default,  is 
unable  to  make  a  good  title,  the  purchaser  is  not  by  law  entitled  to 
recover  damages  for  the  loss  of  his  bargain. 

This  was  so  decided  as  far  back  as  the  year  1775,  in  the  case  of 
Flureau  v.  Thornhill  (2  W.  Bl.  1078),  and  has  been  acted  upon  and 
almost  universally  acquiesced  in  ever  since,  and  the  rule  is,  in  my 
judgment,  consistent  with  good  sense,  and  with  what  may  be  sup- 
posed to  be  the  intention  of  the  contracting  parties ;  nor  does  it  con- 
travene any  principle  of  law  which  has  been  established  with  refer- 
ence to  the  amount  of  damages  that  may  be  recovered  on  breach  of 
contract. 

The  report  of  the  case  of  Flureau  v.  Thornhill  (2  W.  Bl.  1078)  is 
somewhat  meagre.  The  ground  of  decision,  as  stated  by  Chief  Jus- 
tice De  Grey,  is  that,  upon  the  contract  for  a  purchase,  if  the  title 
proves  bad,  and  the  vendor  is  (without  fraud)  incapable  of  making  a 
good  one,  the  purchaser  is  not  entitled  to  any  damages  for  the  fan- 
cied goodness  of  the  bargain.  Mr.  Justice  Blackstone  adds  that 
these  contracts  are  merely  upon  condition,  frequently  expressed,  but 
always  implied,  that  the  vendor  has  a  good  title. 

The  proposition  asserted  by  Chief  Justice  De  Grey,  as  reported, 
might,  no  doubt,  be  stated  in  more  accurate  language,  but  its  mean- 

*  The  case  was  heard  before  Lord  Chelmsford,  Lord  Colonsay,  and  Lord  Hatherley. 
Lord  Colonsay  died  before  judgment  was  delivered. 

\  His  lordship,  though  present  at  the  hearing  of  the  case,  retired  from  the  bench  be- 
fore the  opinions  were  delivered. 
4 


50  REAL   ESTATE. 

ing  is  sufficiently  clear,  and  the  decision  has  been  followed  in  all  sub- 
sequent eases  in  which  the  facts  have  been  substantially  the  same. 
Many  of  these,  including  Walker  v.  Moore  (10  B.  &  C.  41C),  and 
Sikes  v.  Wild  (4  B.  &  S.  4:2 1),  were  cited  in  argument  at  your  lord- 
ships' bar,  and  the  law  is,  by  Lord  St.  Leonards,  in  his  last  edition 
of  Vendors  and  Purchasers  (chap,  viii,  s.  3),  considered  as  settled. 
Other  cases  were  referred  to  in  which  a  different  measure  of  damage 
was  aeted  upon,  but  in  these  the  circumstances  also  were  different. 
In  Hopkins  v.  Grazebrook  (6  B.  &  C.  31)  the  vendor,  when  he  con- 
tracted to  sell,  had  substantially  no  estate,  and  the  conditions  of  sale 
contained  a  distinct  undertaking  to  make  a  good  title.  Lord  Chief 
Justice  Abbott,  no  doubt,  said,  in  giving  judgment,  that  he  should 
desire  time  to  consider  before  he  assented  to  the  general  proposition 
that,  where  a  vendor  cannot  make  a  good  title,  the  purchaser  shall 
recover  no  more  than  nominal  damages  ;  and  Bayley,  J.,  appears  to 
ground  his  decision  upon  the  fact  that  the  vendor  held  out  the  estate 
as  his  own,  when,  in  fact,  he  had  only  an  equitable  title ;  but  I  can 
find  nothing  said  by  either  of  these  very  learned  judges  which  ought 
to  lead  me  to  doubt  the  correctness  of  the  view  taken  in  Flureau  v. 
Thornhill  (2  A\r.  Bl.  1078),  or  to  disturb  a  rule  which,  for  nearly  a 
hundred  years,  has  been  acted  upon  in  a  matter  of  constant  occur- 
rence. 

In  Robinson  v.  Harman  (1  Ex.  850),  the  defendant  agreed  to 
grant  a  valid  lease  when  he  well  knew  that  he  had  no  power  to  do 
so.  In  Engel  v.  Fitch  (Law  Rep.  3  Q.  B.  314  ;  Ibid.  4  Q.  B.  659),  in 
which  there  was  given  an  elaborate  and  exhaustive  judgment  of  the 
Court  of  Queen's  Bench,  confirmed  by  the  Exchequer  Chamber,  the 
defendants,  who  were  mortgagees  of  a  lease,  but  not  in  possession, 
sold  it  to  the  plaintiff,  undertaking  by  the  particulars  of  sale  that 
possession  should  be  given  on  completion  of  the  purchase,  and  on 
the  faith  of  this  the  plaintiff  resold  at  a  profit.  The  title  was  good, 
but  on  the  plaintiff  requiring  possession,  it  was  found  that  the  mort- 
gagor was  in  possession,  and  refused  to  give  it  up ;  and  farther,  that 
the  defendants  could  have  ousted  him  by  ejectment,  but  refused  to 
incur  the  necessary  expenses.  Under  these  circumstances,  the  judges 
in  the  Queen's  Bench  held  that  the  plaintiff  was  entitled  to  recover, 
not  merely  the  deposit  and  expense  of  investigating  the  title,  but 
also  damages  for  the  loss  of  his  bargain,  and  in  giving  the  grounds 
for  their  judgment  on  the  particular  case,  said  that  "the  rule  in 
Flureau  v.  Thornhill  (2  W.  Bl.  1078)  can  have  no  application  where 
the  failure  either  to  make  out  a  title  or  to  give  possession  arises  not 
from  the  inability  of  the  vendor,  but  from  his  unwillingness  either 


BAIN  v.   FOTHERGILL.  51 

to  remedy  a  defect  in  the  title,  or  to  obtain  possession  on  the  score 
of  expense." 

It  was  urged  by  the  learned  counsel  for  the  plaintiffs  in  error, 
that  the  rule  laid  down  in  Flureau  v.  Thornhill  (2  "W.  Bl.  1078)  was 
anomalous,  and  differed  from  that  which  is  usually  applied  to  the 
assessment  of  damages  where  there  has  been  a  breach  of  a  contract 
for  the  delivery  of  goods,  and  therefore  that  it  ought  not  to  be 
upheld.  It  is  scarcely  correct  to  say  the  rule  is  anomalous  ;  that  it 
differs  from  that  applicable  to  a  contract  for  the  sale  of  goods  is  true, 
but  the  subject-matter  to  which  it  is  applied  differs  also. 

It  is  observable,  in  following  the  history  of  the  rule  in  question, 
that  when  it  was  first  laid  down  in  Flureau  v.  Thornhill  (2  "W.  Bl. 
1078),  the  whole  question  of  the  proper  measure  of  damages  had  not 
received  from  our  courts  the  attention  which  it  has  done  in  later 
years.  Moreover,  at  that  time,  although  it  had  never  been  expressly 
so  decided,  it  was  commonly  supposed  that,  upon  the  sale  of  a  chat- 
tel, in  the  absence  of  any  warranty  of  title,  the  rule  of  caveat  emptor, 
as  laid  down  in  Co.  Litt.  (page  102  a),  and  by  K"oy,  in  his  Maxims 
(c.  42^,  applied;  and,  therefore,  the  suggested  anomaly  probably  was 
not  present  to  the  minds  of  the  judges  who  decided  Flureau  v.  Thorn- 
hill (2  W.  Bl.  1078) ;  but  assuming  that  the  difference  exists,  as  it  now 
undoubtedly  does,  there  are  two  marked  distinctions  affecting  the 
present  question  between  a  contract  for  the  sale  of  personal  and  of 
real  property. 

In  the  first  place,  a  man  who  sells  goods  must  be  taken  to  know 
whether  they  are  his  or  not.  Secondly,  he  must  be  aware  that,  in 
the  majority  of  cases,  the  goods  he  is  selling  are  intended  for  resale, 
or  to  be  used  by  the  buyer  for  the  purpose  of  construction  or  manu- 
facture, so  that  both  the  title  of  the  vendor  and  the  probable  result 
of  its  deficiency  may  fairly  be  presumed  to  be  in  the  minds  of  the 
contracting  parties. 

With  real  property  the  case  differs  in  both  these  respects.  First, 
no  layman  can  be  supposed  to  know  what  is  the  exaot  nature  of  his 
title  to  real  property,  or  whether  it  be  good  against  all  the  world  or 
not ;  hence,  as  was  said  by  the  court,  in  Engel  v.  Fitch  (Law  Rep.  3 
Q.  B.  314 ;  Ibid.  4  Q.  B.  659),  the  undoubted  owner  of  an  estate  often 
finds,  unexpectedly,  a  difficulty  in  making  out  a  title  which  he  cannot 
overcome.  Assuming  that  the  vendor  acts  bona  fide,  the  difficulty 
must  be  equally  known  to  the  vendee  as  to  the  vendor. 

Secondly,  to  enter  into  a  contract  for  the  purchase  of  land  in 
order  immediately  to  resell  it  before  the  title  is  examined,  is  unusual 
and  exceptional. 


52  REAL   ESTATE. 

It  seems,  therefore,  more  reasonable  to  treat  the  mere  contract 
for  the  conveyance  of  land  not  as  based  upon  an  implied  warranty 
that  the  vendor  has  power  to  convey,  but  as  involving  the  condition 
that  the  vendor  has  good  title;  and  that  if,  on  examination  of  the 
abstract,  this  turns  out  not  to  be  so,  the  vendee  cannot  ask  to  be  put 
in  as  good  a  position  as  if  a  conveyance  with  the  usual  covenants  had 
been  executed,  but  can  only  recover  the  expenses  to  which  he  has 
been  put.  All  that  has  been  hitherto  said  leads  to  the  conclusion 
that  the  case  of  I-'lmvau  v.  Thornhill  (2  W.  EL  1078)  was  rightly  de- 
cided, at  the  time  it  was  decided,  on  sufficient  legal  principles;  but 
if  it  was  a  decision  to  which  at  the  time  I  could  not  have  acceded,  I 
should,  nevertheless,  think  that  a  contract  of  purchase  and  sale  of 
real  property  made  at  this  day  must  be  construed  to  be  made  on  the 
footing  of  that  decision  being  correct.  All  persons  who  prepare 
such  contracts  know  of  that  decision,  and  that  it  has  been  acquiesced 
in  and  acted  on  for  a  hundred  years.  The  contracts  which  such  per- 
sons prepare  are,  therefore,  made  with  the  understanding  that,  upon 
failure  to  make  out  a  satisfactory  title,  the  rule  as  to  damages  enun- 
ciated in  that  case  will  be  applied.  Then  such  rule  is,  by  intention 
and  understanding  of  the  parties,  a  part  of  the  contract. 

Your  lordships'  second  question  is  :  "  Whether  the  actual  posses- 
sion of  the  property,  the  subject  of  the  contract,  is  essential  to  bring 
the  case  within  the  rule  laid  down  in  Flureau  v.  Thornhill  ? "  (2  "W. 
Bl.  1078). 

Such  actual  possession  is  not,  I  think,  necessary.  If  I  am  right 
in  what  I  have  already  stated  as  to  what  are  the  true  grounds  upon 
which  that  rule  is  founded,  this  seems  to  follow.  In  seeking  to  ar- 
rive at  a  conclusion  whether  the  statements  of  a  vendor  as  to  his  title 
are  bona  fide  or  otherwise,  so  as  to  take  the  case  out  of  the  rule  in 
Flureau  v.  Thornhill  (2  W.  Bl.  1078),  it  may  be  material  to  inquire, 
among  other  facts,  whether  the  vendor  was  in  actual  possession  or 
not ;  but,  assuming  his  bona  fides,  the  fact  ought  not,  in  my  opinion, 
to  affect  the  question.  A  man  who  has  never  been  in  actual  posses- 
sion may  often  have  better  grounds  for  believing,  and  therefore  may 
be  better  entitled  to  act  upon  the  belief,  that  his  title  is  good,  than 
another  who  has  been  in  possession  for  some  time.  Thus,  A.  may 
have  bought  Blackacre  ;  the  abstract  of  title  may  have  been  in- 
vestigated, and  the  conveyance  executed  without  possession  being 
taken  ;  whilst  B.  may  have  been  for  months  in  possession  of  a  fam- 
ily estate,  his  title  to  which  may  not  only  be  doubtful,  but  may 
actually  be  at  the  very  time  in  litigation. 

In  either  of  these  cases,  on  a  sale  by  A.  or  B.  of  the  whole  or  a 


BAIN  v.   FOTHERGILL.  53 

portion  of  the  property,  it  may  turn  out,  either  from  a  more 
thorough  investigation,  or  from  the  decision  of  a  court,  that  A.  or 
B.  had  not  good  title  to  what  he  had  sold,  but  in  both  these  cases 
the  facts  might  be  such  as  ought  to  protect  the  vendor,  if  he  had 
been  guilty  of  no  mala  fides,  from  a  liability  to  pay,  as  damages,  any 
loss  sustained  by  the  vendor  arising  from  his  failing  to  reap  the 
profits  of  a  good  bargain. 

Lastly,  in  answer  to  your  lordships'  third  question,  the  circum- 
stances of  the  present  case  do  not  distinguish  it  or  take  it  out  of  the 
rule  laid  down  in  Flureau  v.  Thornhill  (2  W.  Bl.  1078). 

The  property  in  question,  which  the  defendants  had  agreed  to 
sell  to  the  plaintiffs,  consisted  of  iron  ore  mines,  called  Miss  Walter's 
Royalty,  and  formed  a  small  portion  of  a  large  mining  estate  which 
the  defendants  had  purchased,  in  1863,  from  the  executors  of  one 
Hill.  The  defendants  entered  into  possession  of  the  whole  estate, 
but  the  purchase  had  not  been  completed  upon  the  17th  of  October, 
1867. 

On  that  day  the  defendants  agreed  to  sell  to  the  plaintiffs  the 
defendants'  interest  in  Miss  Walter's  Royalty.  Upon  inquiry,  it 
appeared  that  Miss  Walter's  Royalty  was  held  by  Hill,  under  an 
agreement  for  a  lease  for  twenty-one  years  from  March,  1860,  and 
that  the  agreement  contained  a  clause  providing  against  the  assign- 
ment or  subletting  of  the  premises  without  the  consent  of  the  lessors 
in  writing. 

Before  the  17th  of  October,  one  of  the  defendants  who  negotiated 
the  sale  had  been  informed  that  it  would  be  necessary  to  obtain  the 
consent  of  the  lessors  for  an  assignment  to  third  parties  of  the  de- 
fendants' interest ;  but  it  is  found  as  a  fact  that,  at  the  meeting  on 
the  17th  of  October,  1867,  between  one  of  the  plaintiffs  and  one  of 
the  defendants,  when  the  sale  was  negotiated,  this  necessity  did  not 
cross  the  mind  of  the  latter,  or  if  it  did  occur  to  him,  he  forebore  to 
mention  it,  feeling  sure  that  no  difficulty  would  arise  in  respect  to 
such  consent,  and  that  it  was  therefore  a  matter  of  no  importance. 
After  this  the  defendants  did  all  that  was  in  their  power  to  obtain 
the  lessors'  consent  to  assign,  but  failed  to  do  so. 

The  defendants  therefore  acted  with  perfect  hona  fides,  and  the 
contract  failed,  not  because  the  defendants  did  not  do  what  they 
could  have  done  to  make  a  good  title,  but  because  the  defendant 
who  personally  negotiated  the  contract  overlooked  a  fact  which 
might,  and  in  the  event  did,  prevent  them  from  making  a  good  title 
to  the  plaintiffs. 

Under  these  circumstances  it  seems  to  me  that  there  existed  in 


54  REAL   ESTATE. 

this  case  all  the  material  facts  which  bring  it  within  the  decision  in 
Flurean  v.  Thornhill  (2  "W.  131.  1078),  and  none  of  those  which  had 
been  held  to  create  an  exception  to  that  rule. 

My  learned  brothers  the  Lord  Chief  Baron,  Mr.  Justice  Keating, 
and  Mr.  Justice  Beett,  concur  in  the  opinion  which  I  have  had  the 
honor  to  express  to  your  lordships. 

M  r.  .1 1  ~  i  in:  I ) i;\ man.— In  answer  to  the  first  question  put  by  your 
lordships,  I  am  of  opinion  that,  upon  a  contract  for  the  sale  of  real 
estate,  when  the  vendor,  without  his  default,  is  unable  to  make  a  good 
title,  the  purchaser  is  not  by  law  entitled  to  recover  damages  for  the 
loss  of  his  bargain.  I  answer  your  lordships'  question,  in  its  terms, 
upon  the  assumption  that  I  am  thereby,  in  substance,  only  stating 
that,  in  my  opinion,  the  doctrine  laid  down  in  the  case  of  Flureau  v- 
Thornhill  (2  W.  Bl.  1078)  is  a  part  of  the  law  of  the  land,  binding 
upon  all  courts  of  justice,  and  only  to  be  altered,  if  at  all,  by  the  leg- 
islature. I  must,  however,  at  once  add  that  the  rule  laid  down  in 
Flureau  v.  Thornhill  (2  W.  Bl.  1078)  is,  in  my  opinion,  more  limited 
in  its  operation  than  might  be  contended  for  upon  several  possible 
constructions  of  the  words  "  without  his  default  unable  to  make  a 
good  title,"  as  I  shall  endeavor  to  explain  hereafter. 

In  the  argument  for  the  plaintiffs  in  error  it  was  powerfully  con- 
tended that  Flureau  v.  Thornhill  (2  W.  Bl.  1078)  could  not  be  law, 
because  it  was  not  founded  on  any  principle ;  because  it  was  at  vari- 
ance wit ii  the  ordinary  rules  of  law  applicable  to  the  question  of  the 
damages  recoverable  upon  a  breach  of  contract ;  and  because  it  was 
merely  judge-made  law,  the  origin  of  which  was  apparent  in  the  case 
itself. 

It  may  be  admitted  that  the  case  of  Flureau  v.  Thornhill  (2  W. 
Bl.  1078)  is  not  a  wholly  satisfactory  case.  The  report  is  meagre,  and 
the  judgments  unargumentative ;  but  the  case  cannot  truly  be  said 
to  be  founded  on  no  principle.  It  has  been  frequently  explained 
upon  a  principle  which  cannot  be  called  unreasonable  ;  and  even  in 
eases  in  which  nice  distinctions  prevailed,  and  prevented  its  opera- 
tion from  being  held  applicable,  some  of  the  most  learned  judges, 
while  declining  to  act  upon  it,  have  recognized  it  as  binding,  and  ex- 
plained the  principle  on  which  it  rests.  For  example,  in  Bobinson 
v.  Ilarman  (1  Ex.  855),  Parke,  B.,  in  speaking  of  Flureau  v.  Thorn- 
hill (2  W.  Bl.  1078),  says,  "It  was  there  held  that  contracts  for  the 
sale  of  real  estate  are  merely  on  condition  that  the  vendor  has  a  good 
title"  (adopting  the  judgment  of  Blackstone,  J.),  and  then  adds,  "so 
that  when  a  person  contracts  to  sell  real  property,  there  is  an  implied 
understanding  that  if  lie  fail  to  make  a  good  title,  the  only  damages 


BAIN  v.   FOTHEHGILL.  55 

recoverable  are  the  expenses  which  the  vendor  may  be  put  to  in 
investigating  the  title."  The  same  principle  is  shortly  expressed 
by  Blackbukx,  J.,  in  the  case  of  Sikes  v.  Wild  (1  B.  &  S.  591),  in 
the  words,  "  It  is  implied  from  the  usage  of  this  particular  busi- 
ness." 

Nor  do  I  think  that  Flureau  v.  Thornhill  (2  W.  Bl.  1078)  is  bad 
law,  because  it  is  at  variance  with  the  ordinary  rules  applicable  to 
damages  on  breach  of  contract.  It  has  from  time  to  time,  as  fresh 
cases  have  arisen,  been  found  necessary  to  lay  down  rules  for  the 
guidance  of  juries  in  the  assessment  of  damages.  Hadley  v.  Baxen- 
dale  (9  Ex.  311)  is  a  notable  instance  of  such  a  rule  laid  down  a  few 
years  ago,  and  now  recognized  as  a  part  of  the  common  law.  The 
very  fact  that  the  rule  laid  down  in  Flureau  v.  Thornhill  (2  W.  Bl. 
1078)  has  been  for  nearly  a  century  recognized  and  acted  upon  as  a 
known  limitation  in  respect  of  the  damages  upon  breach  of  a  contract 
for  the  sale  of  real  estate,  seems  almost  sufficient  to  answer  the  argu- 
ment founded  upon  the  anomalous  character  of  the  rule. 

Still  less  do  I  think  that  the  argument  against  the  rule  in  ques- 
tion, that  it  is  "judge-made  law,"  ought  to  prevail.  Difficult  as  it 
is  to  lay  down  any  precise  rule  or  definition  as  to  the  extent  of  ac- 
quiescence which  will  amount  to  conclusive  evidence  that  the  law,  as 
laid  down  in  any  judicial  decision,  is  a  part  of  the  common  law  of 
England,  and  granting  that  no  rule  ought  to  be  laid  clown  which 
should  prevent  your  lordships  from  overruling  any  decision  clearly 
contrary  to  good  sense,  however  ancient  it  might  be,  I  am  of  opin- 
ion that  the  case  of  Flureau  v.  Thornhill  (2  W.  Bl.  1078),  as  under- 
stood in  subsequent  cases,  and  as  limited  by  your  lordships'  question, 
is  neither  absurd  nor  unreasonable  ;  and  that  it  has  received  an 
amount  of  subsequent  judicial  recognition  sufficient  to  stamp  it  as 
part  of  the  undoubted  common  law,  to  be  noticed  by  all  courts,  and 
not  to  be  overruled  except  by  the  legislature.  The  exact  extent 
of  the  rule,  and  the  limits  of  its  operation,  I  propose  to  consider  in 
my  answer  to  the  second  and  third  questions  proposed  by  your  lord- 
ships. 

In  answer  to  the  second  question  put  by  your  lordships,  I  am  of 
opinion  that  the  actual  possession  of  the  property,  the  subject  of  the 
contract,  is  not  essential  to  bring  the  case  within  the  rule  laid  down 
in  Flureau  v.  Thornhill  (2  W.  Bl.  1078).  In  order  to  consider  this 
question,  it  appears  to  me  to  be  necessary  to  explain  my  view  of  the 
exact  effect  and  extent  of  the  ruling  in  Flureau  v.  Thornhill  (2  W.  Bl. 
1078),  which,  in  my  opinion,  has  sometimes  been  supposed  to  go  farther 
than  the  words  or  the  reasons  of  the  judgments,  as  reported,  really 


5G  REAL   ESTATE. 

go.  The  report,  after  stating  the  purchase  by  the  plaintiff  at  an 
auction  of  a  rent  issuing  out  of  a  leasehold  house  for  £270,  and  pay- 
ment of  a  deposit  of  £20,  states,  that  "  on  looking  into  the  title,  the 
deft  ndant  could  not  make  it  out."  From  this  I  conclude  that  it  was 
an  ordinary  ease  of  a  person  in  possession  of  property,  with  a  hold- 
in--  title,  and  without  any  knowledge  of  any  defect  in  his  selling 
title,  discovering  for  the  first  time,  on  investigation  of  the  matter, 
thai  he  has  not  such  a  title  as  a  purchaser  could  be  compelled  to 
take.  In  such  a  case,  and  in  such  a  case  only,  as  it  appears  to  me, 
doc,  Fluivan  y.  Thornhill  (2  W.  Bl.  1078)  decide  that  the  ordinary 
rule  relating  to  damages  for  breaches  of  contract  does  not  apply  to 
sales  of  real  estate.  The  language  of  De  Grey,  C.  J.,  and  Black- 
bt<  inb,  J.,  seems  to  me  quite  applicable  to  such  a  case,  and  not  strictly 
applicable  to  any  other.  The  former  says,  "Upon  a  contract  for  a 
purchase,  if  the  title  proves  bad,  and  the  vendor  is  (without  fraud) 
incapable  of  making  a  'good  one ' ;"  by  which  I  understood  him  to 
refer  to  a  discovery  made  subsequently  to  the  making  of  the  con- 
tract. Mr.  Justice  Blackstone  says,  "  These  contracts  are  merely 
upon  condition,  frequently  expressed,  but  always  implied,  that  the 
vendor  has  a  good  title.  If  he  has  not,  the  return  of  the  deposit, 
with  interest  and  costs,  is  all  that  can  be  expected."  These  words 
do  not  very  correctly  express  that  which  they  have  been  always 
understood  to  mean,  viz.,  that  the  contract  is  one  made  upon  the 
terms  that  if  the  title  is  not  good,  the  damages  shall  be  limited  as 
des<  ribed  ;  but  there  is  no  difficulty  in  understanding  what'  Mr.  Jus- 
tice Blackstone  meant,  and  I  apprehend  it  is  clear  that  when  he 
speaks  of  an  "  implied  condition  that  the  vendor  has  a  good  title,"  he 
cannot  have  intended  to  include  the  case  of  an  intending  vendor 
knowing  that  he  has  not  a  good  title,  and  neglecting  to  disclose  the 
fact  to  the  intended  purchaser  before  the  contract  is  made. 

Before  dismissing  the  case  of  Flureau  v.  Thornhill  (2¥.  Bl.  1078), 
it  may  be  desirable  to  refer  to  two  cases  to  be  found  in  notes  to  the 
Appendix  to  Sugden's  Vendors  and  Purchasers,  which  have  been 
sometimes  cited  as  proving  that  the  case  of  Flureau  v.  Thornhill  (2 
"W.  Bl.  L078)  had  a  wider  operation  than  that  above  explained.  The 
first  of  these  is  Bratt  v.  Ellis  (Sug.  V.  &  P.  11th  ed.  Ap.  No.  4 ;  see 
p.  650  in  the  13th  ed.,  where  these  two  cases  are  only  referred  to, 
but  not  set  forth).  That  case,  however,  can  scarcely  be  cited  as  an 
authority  for  any  particular  proposition,  inasmuch  as  the  decision  is 
only  to  the  effect  that  the  defendant  should  be  let  in  to  plead  after 
a  verdict  against  him  on  a  writ  of  inquiry,  including  £250  for  loss 
of  bargain,  upon  payment  into  court  of  the  deposit  money  and  in- 


BAIN  v.   FOTHERGILL.  57 

terest,  and  on  payment  to  the  plaintiff  of  costs.  What  became  of 
the  action  does  not  appear. 

The  other  case,  Jones  v.  Dyke  (Ibid.  No.  5),  was  an  action  against 
a  firm  of  auctioneers,  who  professed  to  be  authorized  to  sell  certain 
estates  in  "Wales,  tried  before  Macdonald,  C.  B.,  at  the  Hereford  as- 
sizes. The  only  part  of  the  report  affecting  the  present  question  is 
the  following  passage :  "  It  appearing  that  the  defendants  had  no 
authority  to  sell,  the  plaintiff  had  a  verdict  by  consent  for  £261 ;  the 
judge  thinking  the  items  of  which  that  sum  was  composed  reason- 
able, but  the  plaintiff  did  not  obtain  any  damages  for  the  loss  of  his 
bargain,"  from  which  it  would  appear  that  at  most  this  was  only  a 
ruling  at  nisi  prius  /  and  in  all  probability  one  given  under  such 
circumstances  as  would  have  precluded  either  party  from  afterwards 
objecting  to  it. 

Both  these  cases  appear  to  have  been  decided  between  1804  and 
1808,  from  the  dates  which  appear  in  the  notes,  and  I  can  find  no 
case  throwing  any  light  upon  the  subject  down  to  the  case  of  Hop- 
kins v.  Grazebrook  (6  B.  &  C.  31),  decided  in  the  year  1826,  which 
I  will  now  consider.  In  that  case  the  declaration  stated  that  the  de- 
fendant caused  the  premises  to  be  put  up  to  sale  by  auction,  subject 
to  conditions  that  the  purchaser  should  immediately  pay  a  deposit, 
and  should  pay  the  residue  of  the  purchase  money  on  the  subsequent 
25th  of  March,  and  on  payment  to  be  let  into  possession,  and  a  proper 
conveyance  should  be  executed  by  the  vendor,  who  undertook  to 
make  a  good  title  (which  he  did  not  do,  nor  did  he  execute  a  proper 
conveyance),  whereby  plaintiff  was  deprived  of  all  benefit  to  be  de- 
rived from  the  purchase,  and  put  to  great  expense.  The  defendant 
pleaded  the  general  issue,  and  j)aid  into  court  the  amount  of  the  ex- 
penses which  the  plaintiff  had  been  put  to,  and  a  small  sum  for 
nominal  damages  for  the  breach  of  contract.  The  facts  proved  at 
the  trial  were  extremely  similar  to  those  found  in  the  case  now  be- 
fore your  lordships.  The  premises  in  question  were  part  of  a  prop- 
erty belonging  to  Hill  &  Co.,  they  had  contracted  to  sell  to  one  Har- 
wood,, and  the  defendant  had  agreed  to  purchase  from  Harwood. 
Owing  to  some  misunderstanding  which  arose  between  Hill  &  Co. 
and  Harwood,  the  conveyance  to  Harwood  was  never  executed.  The 
report  goes  on  to  state  that  the  defendant,  expecting  that  the  matter 
would  be  arranged,  and  that  the  contract  between  Harwood  and  hint- 
self  would  be  carried  into  effect,  put  up  the  premises  to  auction,  as 
stated,  in  the  declaration,  but  that,  in  consequence  of  the  disputes 
between  Hill  &  Co.  and  Harwood,  he  was  unable  to  complete  his 
contract.     It  was  admitted  that  he  had  acted  bona  fide.     The  learned 


58  REAL   ESTATE. 

judge,  Gakkow,  II,  told  the  jurors  that  they  were  not  bound  to  con- 
fine  their  verdict  to  nominal  damages,  and  they  having  found  a  ver- 
dict for  £70  beyond  the  sum  paid  into  court,  the  full  court,  con- 
Bisting  of  Abbott,  C.  J.,  Batlet,  Holroyd,  and  Lilltledale,  J  J., 
refused  a  rule,  moved  pursuant  to  leave  reserved,  to  enter  a  nonsuit. 
Before  considering  the  judgments  in  that  case,  it  maybe  observed 
that  there  existed  the  following  facts,  which  were  wholly  wanting  in 
Fmrean  v.  Thornhil]  (2  W.  Bl.  1078):  First,  there  was  an  express 
undertaking  to  let  into  possession  on  payment  of  the  purchase  money 
on  a  day  certain;  secondly,  the  defendant  expressly  undertook  to 
make  a  good  title;  and  thirdly,  the  defendant  evidently  knew  that 
he  Mas  contracting  to  sell  a  property  upon  an  expectation  only 
(though  a  bona  fide  one)  that  the  contract  between  Harwood  and 
himself  would  be  carried  into  effect,  a  matter  over  which  he  must 
have  known  that  he  had  no  control.  The  contract,  therefore,  was 
not  broken,  as  in  Flureau  v.  Thornhill  (2  W.  Bl.  1078),  by  reason  of 
a  discovery  that  the  defendant's  title  was  defective,  but  by  a  failure 
to  do  the  very  thing  he  had  contracted  to  do  by  a  certain  day.  Nor 
was  it  possible  in  that  case  to  imply  a  condition  "from  the  usage  of 
that  particular  business,"  such  as  that  implied  in  Flureau  v.  Thorn- 
hill  (2  W.  Bl.  1078),  inasmuch  as  the  parties  had  expressly  agreed,  ab- 
solutely and  not  conditionally,  that  a  good  title  should  be  made. 
When  carefully  examined,  I  think  that  all  the  observations  of  the 
learned  judges  in  that  case,  read  with  reference  to  the  facts  of  the 
case,  amount  to  no  more  than  a  decision  that  mere  inability  to  make 
a  good  title  does  not,  of  itself,  bring  a  vendor  within  the  rule  laid 
down  in  Flureau  v.  Thornhill  (2  "W.  Bl.  1078)  as  to  damages;  but 
that  it  depends  upon  the  nature  of  the  contract,  and  also  upon  the 
reasons  for  the  inability,  whether  he  can  avail  himself  of  that  rule ; 
and  that  in  such  a  case  as  that  of  Hopkins  v.  Grazebrook  (6  B.  &  C.  31), 
a  vendor  was  not  within  the  rule.  It  is  true  that  several  expressions 
of  Abbott,  C.  J.,  and  Bayley,  J.,  in  that  case,  have  been  thought  to 
lay  down  more  precise  rules  than  would  be  the  case  according  to  the 
above  view  of  it ;  but,  in  my  opinion,  the  judgments  are  to  be  read 
as  only  containing  some  of  the  reasons  for  holding  that  whether  Flu- 
reau v.  Thornhill  (2  W.  Bl.  1078)  was  correctly  decided  or  not,  it 
certainly  was  no  authority  for  the  proposition  that  under  all  circum- 
stances, and  whatever  the  cause  of  the  default,  a  vendor  unable  to 
make  a  good  title  should  have  a  right  to  break  his  contract,  subject 
to  a  certain  limited  amount  of  damages ;  but,  on  the  contrary,  that, 
notwithstanding  Flureau  v.  Thornhill  (2  W.  Bl.  1078),  a  vendor  who 
puts  up  an  estate  to  auction,  contracting  to  make  a  good  title,  and 


BAIN   v.   FOTIIERGILL.  59 

knowing  lie  has  no  title,  is  responsible  for  his  breach  of  contract  in 
the  same  way  and  to  the  same  extent  of  damages  as  other  persons 
breaking  their  contracts.  It  is  true  there  are  expressions  in  the 
judgments  in  Hopkins  v.  Grazebrook  (6  B.  &  C.  31)  which,  read  by 
themselves,  would  seem  to  imply  that  Flureau  v.  Thornhill  (2  W.  Bl. 
1078)  could  never  apply  where  the  vendor  wasiiot  in  possession  of  that 
which  he  had  contracted  to  sell.  Abbott,  C.  J.,  says  :  "  The  defend- 
ant had  unfortunately  put  the  estate  up  to  auction  before  he  got  a 
conveyance.  He  should  not  have  taken  such  a  step  without  ascer- 
taining that  he  would  be  in  a  situation  to  offer  some  title."  And 
Bayley,  J.,  says,  "  for  here  the  vendor  had  nothing  but  an  equitable 
title,"  as  though  that  were  the  test ;  but'  I  think  that  both  these  ex- 
pressions must  be  read  in  connection  with  the  fact  that  the  defend- 
ant knew  he  was  offering  a  property  the  title  to  which  was  defective, 
and  his  ability  to  sell  it  a  matter  beyond  his  own  control.  Cases 
may  easily  be  conceived  in  which  a  person  without  actual  possession, 
but  bona  fide  believing  that  he  had  a  present  right  to  convey,  might 
be  properly  held  entitled  to  the  benefit  of  the  rule  in  Flureau  v. 
Thornhill  (2  W.  Bl.  1078)  without  in  any  way  overruling  the  decis- 
ion in  Hopkins  v.  Grazebrook  (6  B.  &  C.  31),  if  I  am  right  in  my  in- 
terpretation of  its  meaning  and  effect.  Pounsett  v.  Fuller  (17  C.  B. 
660)  was,  in  fact,  such  a  case.  There  the  defendant,  having  a  mere 
agreement  from  the  owner  of  a  manor  for  a  right  of  shooting,  but 
bona  fide  believing  that  he  had  a  selling  title,  contracted  to  sell  his 
right  of  shooting  to  the  plaintiff.  It  turned  out,  on  the  investigation 
of  the  title,  that  he  had  no  legal  title.  Under  these  circumstances  it 
was  held  by  the  Court  of  Common  Pleas  that  the  rule  in  Flureau  v. 
Thornhill  (2  W.  Bl.  1078)  applied.  After  an  elaborate  argument,  in 
which  all  the  cases  which  had  then  been  decided  were  discussed, 
Jekvis,  C.  J.,  and  other  judges  delivered  a  judgment  in  favor  of  the 
defendant,  which  seems  to  me  quite  satisfactorily  to  dispose  of  this 
question.  Jekvis,  C.  J.  (17  C.  B.  678),  thus  shortly  states  the  ground 
of  the  decision :  "  Though  he  had  not  a  right  to  sell  that  which  he 
professed  to  sell,  inasmuch  as  it  was  an  incorporeal  hereditament, 
which  could  only  be  granted  under  seal,  yet,  as  a  layman,  he  had  a 
fair  right  to  believe  he  had  the  power  to  sell  which  he  professed  to 
have,  and,  therefore,  this  case  comes  within  the  qualification  of  the 
rule  as  expressed  in  Hopkins  v.  Grazebrook  (6  B.  &  C.  31)  and  Walker 
v.  Moore  (10  B.  &  C.  416)."  He  had  previously  stated  the  effect  of 
Walker  v.  Moore  (10  B.  &  C.  416)  as  expressly  determining  "  that 
where  the  party  is  not  to  blame,  but  professes  to  sell  that  which  he 
bona  fide  believes  he  can  sell,  though  in  fact  he  may  have  no  title, 


GO  REAL   ESTATE. 

he  is  liable  only  for  the  expenses  of  investigating  the  title;"— and 
tin-  case  of  Hopkins  v.  Grazebrook  (6  B.  &  C.  31)  as  deciding  that 
where  the  party  enters  into  a  contract,  knowing  that  he  cannot  make 
a  title,  he  is  remitted  to  his  "general  liability,"  by  which  is  of  course 
meant  liability  to  damages  as  in  an  ordinary  case  of  breach  of  con- 
tract. Cbesswell,  J.,  says  :  "  The  defendant  having  a  grant,  though 
not  a  Legal  one,  of  the  shooting,  both  parties  acted  under  a  bona  file 
impression  that  he  had  that  to  sell  which  he  professed  to  sell;  I  can- 
not, therefore,  see  how  the  case  can  be  brought  within  the  exception 
in  Hopkins  y.  Grazebrook  (6  B.  &  C.  31)."  Williams,  J.,  uses  an  ex- 
pression in  his  judgment  which  appears  to  me  clearly  to  show  that 
he  does  not  take  the  judgment  of  Batley,  J.,  in  Hopkins  v.  Graze- 
brook  (6  B.  6c  C.  31),  to  be  intended  to  lay  down  a  general  rule  that 
wherever  the  vendor  has  nothing  but  an  equitable  title,  the  rule  in 
Flureau  v.  Thornhill  (2  W.B1.  1078)  cannot  apply.  He  says  (17  C. 
B.  682):  u  It  is  true  that  here  the  defendant  had  a  mere  equitable 
title  ;  but  the  facts  show  that  he  did  not  know  when  he  entered  into 
the  contract  that  he  had  not  a  perfectly  good  legal  title.  Ignorance 
of  law  is  not  that  kind  of  misconduct  which  brings  the  case  within 
the  rale  in  Hopkins  v.  Grazebrook  (6  B.  &  C.  31)." 

I  have  come  to  the  conclusion,  upon  the  above  consideration  of 
the  cases,  especially  that  of  Pounsett  v.  Fuller  (17  C.  B.  660),  which 
I  think  was  satisfactorily  decided,  that  the  application  of  the  rule 
laid  down  in  Flnreau  v.  Thornhill  (2  W.  Bl.  1078)  does  not  depend 
upon  the  actual  possession  of  the  property  by  the  vendor.  I  think, 
for  instance,  that  it  would  apply  in  the  case  of  a  sale  of  property, 
where,  upon  investigation  of  the  title,  it  should  be  discovered  that, 
owing  to  some  deed  of  partition,  the  effect  of  which  had  been  mis- 
understood, the  vendor  was  dealing  with  property  A,  when  he  had 
only  a  right  to  sell  property  B ;  and  in  many  other  cases  which  may 
bi'  supposed,  where  the  contract  goes  off,  owing  to  a  discovery 
subsequent  to  the  contract  that  the  vendor  has  not  a  title  to  sell 
what,  at  the  time  of  the  contract,  he  bona  fide  supposed  himself  to 
possess. 

I  am,  however,  of  opinion,  in  answer  to  the  third  question  pro- 
posed by  your  lordships,  that  the  circumstances  of  the  present  case 
do  distinguish  it,  and  take  it  out  of  the  rule  laid  down  in  Flureau 
v.  Thornhill  (2  W.  Bl.  1078). 

I  need  not  here  repeat  the  observations  already  made  as  to  what 
I  conceive  to  be  the  actual  limits  of  the  rule  laid  down  in  that  case, 
or  the  extent  of  the  qualification  of  its  apparent  generalty  estab- 


BAIN  v.   FOTHERGILL.  61 

lislied  by  subsequent  cases ;  but  I  will  at  once  proceed  to  state  what 
I  conceive  to  be  the  material  facts  stated  in  the  present  case. 

It  appears  from  the  case  that  one  Hill  was  possessed  of  certain 
iron  ore  mines,  amongst  others  of  one  called  Miss  Walter's  Royalty, 
by  virtue  of  an  agreement,  in  1861,  for  a  lease  for  twenty-one  years. 
This  agreement  contained  a  clause  providing  against  assignment 
without  the  consent  of  the  lessors  in  writing  first  thereto  obtained. 
Hill  having  died,  his  executors,  about  August,  1863,  contracted  to 
sell  all  the  mines  of  Hill,  deceased,  including  his  interest  in  Walter's 
Royalty,  for  £250,000.  This  purchase  had  not  been  completed  when 
the  contract,  the  subject  of  this  action,  was  made  on  the  17th  of 
October,  1867.  The  case  then  states  an  ajyplication  by  Hill's  exec- 
utors to  Hill's  lessors  for  their  consent  to  the  assignment  to  the  de- 
fendants, which  the  lessors  were  willing  to  give  if  the  defendants 
would  execute  a  duplicate.  A  duplicate  consent  was  prepared,  and, 
in  June,  1865,  one  part  was  executed  by  the  lessors  and  retained  by 
them.  The  other  part  was  sent  to  the  solicitors  for  the  executors  to 
obtain  the  defendants'  signature  ;  and  in  the  same  month  the  solici- 
tors for  the  executors  sent  the  duplicate  consent  to  the  defendants' 
solicitors  for  their  execution.  The  lessors'  solicitors  having  more 
than  once  requested  the  solicitors  for  the  executors  to  obtain  the 
execution  by  the  defendants  of  the  duplicate  consent,  the  solicitors 
for  the  executors  wrote  to  the  defendants'  solicitors,  on  the  11th  of 
October,  1865,  stating,  as  the  fact  was,  that  they  had  learnt  from  the 
lessors'  solicitors  that,  unless  the  duplicate  was  sent  back  signed  in 
a  few  days,  the  assent  of  the  lessors  would  be  withdrawn.  The  du- 
plicate consent  remained  unexecuted  in  the  hands  of  the  defendants' 
solicitors  at  the  time  when  the  agreement,  the  subject  of  the  action, 
was  entered  into  on  the  17th  of  October,  1867.  In  the  mean  time 
questions  arose  upon  several  abstracts  of  title  relating  to  various 
parts  of  the  property  included  in  the  agreement  of  August,  1863, 
between  the  defendants'  solicitors  and  the  executors'  solicitors,  which 
were  not  settled  until  October,  1868,  when  the  purchase  of  all  the 
property  included  in  the  agreement  of  August,  1863,  was  completed. 
Before  the  agreement  of  October,  1867,  was  signed,  the  defendant 
Fothergill,  who  afterwards  made  that  agreement,  had  been  informed 
that  it  would  be  necessary  to  obtain  the  consent  of  the  lessors  for  the 
assignment  to  third  parties  of  the  defendant's  interest  in  Walter's 
Royalty  ;  but  at  the  meeting  at  which  the  contract  sued  upon  was 
discussed  and  afterwards  signed  he  made  no  mention  of  the  necessity 
for  such  consent,  as  the  case  finds,  either  because  it  did  not  occur  to 
him,  or  if  it  did,  because  he  felt  sure  that  no  difficulty  would  arise  in 


G2  REAL  ESTATE. 

respect  to  such  consent,  and  therefore  that  it  was  a  matter  of  no  im- 
portance. On  the  17th  of  October,  18G7,  the  agreement  sued  upon 
was  signed,  the  material  part  of  which  is  in  the  words:  "We  offer  to 
sell  v.'m  our  interest  in  Miss  Walter's  Royalty,  £2,500  to  be  paid  us 
in  cash,  on  our  handing  you  a  transfer  of  the  said  royalty.  A  de- 
posit of  £250  to  be  made  us  forthwith,  and  the  whole  arrangement 
to  be  carried  out  and  accomplished  as  soon  as  may  be.  Signed 
Richard  Fothergill,  for  &c.  and  self.  We  accept  of  offer  in  terms 
stated.  Bain  &  Co.,  per  John  Paterson."  Before  acceding  to  the 
proposed  terms,  Mr.  Paterson  asked  for  time  to  consult  his  partners, 
which  was  declined.  The  bargain  was  thereupon  concluded,  and  the 
deposit  of  £25<  I  paid.  Mr.  Paterson  did  not  learn  till  the  22d  or  23d 
of  October  that  the  consent  of  the  lessor  was  necessary.  He  then 
wrote  to  Mr.  Fothergill,  requesting  him  to  sign  the  consent,  which 
the  defendants  had  still  to  sign  (alluding  to  the  duplicate  consent 
which  remained  unsigned  in  the  defendants'  possession),  but  though 
the  defendants  did  their  best  to  obtain  the  consent  of  the  lessors, 
they  failed  to  obtain  such  consent,  in  consequence  of  which,  after 
attempts  to  make  a  fresh  arrangement,  and  to  obtain  the  consent 
of  the  plaintiffs  to  cancel  the  agreement,  the  defendants,  being  un- 
able to  obtain  the  consent  of  the  lessors  to  an  assignment,  except 
to  one  Stirling,  sold  to  Stirling,  and  the  present  action  was  com- 
menced. 

From  the  above  statement  it  appears  that  when  the  contract  of 
the  17th  of  October,  1867,  was  signed,  the  defendant  Fothergill 
knew  that  the  consent  of  Hill's  lessors  was  required  before  Hill's 
executors  could  assign  their  interest  to  the  defendants,  and  also  that 
the  like  consent  was  necessary  before  the  defendants  could  effectually 
assign  their  interest  to  the  plaintiffs.  The  plaintiffs  were  not  in- 
formed either  of  the  necessity  or  of  the  non-existence  of  such  con- 
sent. It  farther  appears  that  before  the  contract  was  signed,  the 
defendants  had  had  notice,  through  their  solicitor,  that  the  consent 
of  the  lessors  of  Hill  to  the  assignment  of  his  agreement  with  them 
was  dependent  upon  the  defendants  doing  an  act  which  they  were 
being  pressed  to  do  as  far  back  as  October,  1865,  and  which  had  not 
yet  been  done,  and  that  such  notice  was  not  communicated  to  the 
plaintiffs,  nor  the  difficulty  which  might  obviously  arise  in  conse- 
quence pointed  out.  It  appears  to  me  that,  under  the  circumstances, 
it  was  so  clearly  the  duty  of  Mr.  Fothergill  to  have  put  the  plaintiffs 
in  possession  of  these  facts  before  he  allowed  them  to  sign  a  contract 
for  the  purchase  of  the  royalty,  that  it  is  impossible  for  the  defend- 
ants to  rely  upon  the  rule  in  Flureau  v.  Thornhill  (2  W.  Bl.  1078). 


BAIN   v.   FOTHERGILL.  63 

I  think  that  the  contract  did  not  in  this  case  go  off  through  the  dis- 
covery by  the  defendants  that  they  could  not  make  a  good  title,  but 
by  reason  of  the  over-sanguine  expectation  on  the  part  of  Mr.  Fother- 
gill  that  an  obstacle,  which  he  knew  to  exist,  and  over  which  he  had 
no  control,  would  somehow  or  other  cease  to  exist  before  the  comple- 
tion of  the  purchase.  In  such  a  case,  I  am  of  opinion  that  the  case 
of  Flureau  v.  Thornhill  (2  W.  Bl.  1078)  does  not  apply. 

Finding  myself,  unfortunately,  compelled  to  differ  from  the  rest 
of  my  learned  brethren  in  the  answer  I  give  to  the  third  question 
asked  by  your  lordships'  House,  it  is  necessary  for  me  to  notice  cer- 
tain other  decisions  in  pari  materia  with  those  already  commented 
upon,  and  to  consider  how  far  they  bear  upon  the  present  case,  and 
how  far  they  can  be  supported  upon  principle,  so  as  to  be  properly 
regarded  as  binding  upon  your  lordships,  as  part  of  the  law  upon 
the  subject. 

The  first  of  these  is  Walker  v.  Moore  (10  B.  &  C.  416),  already 
referred  to,  decided  in  the  year  1829,  only  three  years  after  Hopkins 
v.  Grazebrook  (6  B.  &  C.  31).  In  that  case  the  agreement  for  pur- 
chase was  in  July,  1827.  The  abstract  of  title  was  delivered  in 
August,  1827,  and  returned  in  September  with  observations  and  a 
request  for  an  appointment  to  examine  documents.  In  ^November, 
before  the  appointment  was  made,  notice  was  given  by  the  purchaser 
of  a  proposed  resale  by  him  of  a  part  of  the  property,  and  a  part  was 
resold.  On  the  6th  of  February  the  original  documents  were  exam- 
ined, and  the  defect  in  the  defendants'  title  was  then  discovered. 
In  that  case  it  was  held  in  perfect  conformity  with  Flureau  v.  Thorn- 
hill  (2  W.  Bl.  1078),  and  not  inconsistently  with  Hopkins  v.  Graze- 
brook  (6  B.  &  C.  31),  that  no  damages  for  loss  of  bargain  could  be 
recovered.  No  doubt  the  main  ground  of  the  decision  in  that  case, 
so  far  at  least  as  the  decision  of  Mr.  Justice  Batley  is  concerned, 
appears  to  have  been  that  the  plaintiff  was  premature  in  selling  be- 
fore he  had  obtained  an  actual  conveyance  of  the  estate  ;  but  thai; 
ground  itself,  looking  at  the  facts  of  the  particular  case,  depended  upon 
the  doctrine  laid  down  in  Flureau  v.  Thornhill  (2  W.  Bl.  1078).  Lrr- 
tledale,  J.,  so  treats  the  matter,  and  says  (10  B.  &  C.  422) :  "When 
a  contract  for  the  purchase  of  lands  is  made,  each  party  cannot  but 
know  that  the  title  may  prove  defective,  and  must  be  supposed  to 
proceed  upon  that  knowledge."  And  Mr.  Justice  Pakke,  in  his 
judgment,  speaks  of  "  a  defect  heing  found  in  the  title  ;  "  and  states 
the  rule  in  Flureau  v.  Thornhill  (2  W.  Bl.  1078)  thus :  "  In  the  ab- 
sence of  any  express  stipulation  about  it,  the  parties  must  be  con- 
sidered as  content  that  the  damages,  in  the  event  of  the  title  proving 


61  KEAL   ESTATE. 

defective,  shall  be  measured  in  the  ordinary  way,  and  that  excludes 
the  claim  of  damages  on  account  of  the  supposed  goodness  of  the 
bargain."  Both  of  these  passages  are  wholly  inapplicable  to  the  case 
of  one  party  knowing  that  a  consent  to  his  selling  the  property  is 
essential  and  wanting;  the  other  party  being  wholly  in  ignorance  of 
those  facts.  I  am,  therefore,  of  opinion  that  Walker  v.  Moore  (10  B. 
&  C.  410)  is  no  authority  for  the  defendants'  contention  in  the  present 
case. 

The  case  of  Robinson  v.  Harman  (1  Ex.  850)  appears  to  me  to  be 
a  very  strong  authority  for  the  plaintiffs.  That  case,  in  effect,  de- 
cided that,  where  a  vendor  knows  he  has  no  title,  and  chooses  to 
contract  for  the  sale  of  the  property,  he  is  not  within  the  rule  as  to 
limitation  of  damages  laid  down  in  Flureau  v.  Thornhill  (2  W.  Bl. 
1078).  There  may  be  some  doubt  whether  that  case  is  wholly  recon- 
cilable with  the  case  of  Sites  v.  Wild  (1  B.  &  S.  587;  1  Ibid.  421), 
to  be  noticed  afterwards,  as  to  what  constitutes  sufficient  knowledge 
on  the  part  of  a  vendor  to  deprive  him  of  the  benefit  of  the  rule  ; 
but,  in  any  case,  I  am  of  opinion  that  the  case  of  Robinson  v.  Harman 
(1  Ex.  850)  was  rightly  decided,  because  the  vendor  in  that  case,  in 
answer  to  express  inquiries  as  to  his  power  to  lease,  and  as  to  the 
legal  estate  being  vested  in  trustees,  took  upon  himself  positively  to 
assert  that  the  property  was  his  out  and  out,  and  that  he  alone  had 
the  power  of  leasing.  The  contract  being  made  after  such  a  state- 
ment, I  think  it  was  rightly  held  as  against  the  vendor,  that  he  could 
not  set  up  a  rule  applicable  only  to  the  case  where  both  parties  are 
in  ignorance  as  to  whether  the  title  will  prove  defective  or  not.  He 
either  knew  in  a  legal  sense  that  it  was  defective,  or  having  taken 
upon  himself  to  assert  its  perfection  in  a  matter  upon  which  inquiry 
had  been  expressly  made,  he  could  not  set  up  a  rule  which  implies 
ignorance  of  the  defect  in  both  contracting  parties.  I  think,  there- 
fore, that  his  liability  was  properly  held  to  be  that  of  any  person  who 
breaks  his  contract,  and  not  limited  as  in  Flureau  v.  Thornhill  (2  W. 
BL  1078). 

In  Worthington  v.  Warrington  (8  C.  B.  134  ;  18  L.  J.  [C.  P.]  350), 
decided  in  1849,  the  doctrine  in  Flureau  v.  Thornhill  (2  W.  Bl.  1078) 
was  again  discussed  and  applied,  but  without  in  any  way  questioning 
the  authority  of  Hopkins  v.  Grazebrook  (6  B.  &  C.  31),  or  of  Robin- 
son v.  Harman  (1  Ex.  850),  then  recently  decided  by  the  Court  of 
Exchequer,  and  cited  upon  the  argument.  Mr.  Justice  Coltman, 
who  delivered  a  judgment  in  which  the  rest  of  the  court  concurred, 
placed  his  decision  on  grounds  entirely  in  conformity  with  the  view 
I  have  submitted  of  the  true  extent  and  application  of  the  rule.   He 


BAIN  v.   FOTHERGILL.  65 

says,  "  every  one  who  purchases  land,  knows  that  a  difficulty  may 
exist  as  to  the  making  a  title  which  was  not  anticipated  at  the  time 
of  entering  into  the  contract." 

The  case  of  Pounsett  v.  Fuller  (17  C.  B.  660),  decided  in  1856, 
has  already  been  referred  to.  I  only  notice  it  again  for  the  purpose 
of  adding  that  I  think  it  fully  bears  out  the  observations  I  have 
made  as  to  the  effect  of  the  previous  decisions.  The  only  qualifica- 
tion of,  or  addition  to,  the  law  laid  down  in  those  decisions  which  I 
find  in  the  case  of  Pounsett  v.  Fuller  (17  C.  B.  660)  is  that  which  is 
embodied  in  a  sentence  of  Mr.  Justice  Williams'  judgment  (Ibid. 
682)  already  cited  :  "  Ignorance  of  law  is  not  that  sort  of  misconduct 
which  brings  the  case  within  the  rule  in  Hopkins  v.  Grazebrook  (6 
B.  &  C.  31)."  In  the  present  case,  I  do  not  think  that  Mr.  Fother- 
gill's  neglect  to  mention  either  the  necessity,  or  the  absence,  of  the 
required  consents  was  in  the  nature  of  an  ignorance  of  law,  but  a 
neglect  to  mention  an  obstacle  within  his  own  knowledge  and  be- 
yond his  own  control,  and  which  he  knew  to  be  fatal  as  long  as  it 
existed  to  his  title  to  sell ;  and  that  the  mere  circumstance  that  he 
either  thought  nothing  about  it,  or  that  he  expected  that  the  ob- 
stacle would  be  removed,  did  not  entitle  him  to  the  benefit  of  the 
rule  in  Flureau  v.  Thornhill  (2  W.  Bl.  1078) ;  but  on  the  contrary  is 
conclusive  to  show  that  the  case  is  within  the  principle  of  Hopkins 
v.  Grazebrook  (6  B.  &  C.  31),  and  Kobinson  v.  Harman  (1  Ex.  850). 

I  come  now  to  the  case  of  Sikes  v.  Wild  (1  B.  &  S.  587  ;  4  Ibid. 
421).  That  was  a  case  very  peculiar  in  its  circumstances,  and  led  to 
a  difference  of  opinion  in  the  Court  of  Queen's  Bench.  The  prop- 
erty in  question  was  incumbered  with  an  annuity,  and  the  vendor 
knew  that  no  title  free  of  incumbrance  could  be  made,  unless  the 
annuitant  and  her  trustee  would  discharge  the  part  sold  from  the 
trust  to  secure  the  annuity.  The  annuitant  had  verbally  agreed  to 
transfer  her  security  to  another  property,  but  after  the  plaintiff  had 
agreed  to  buy  the  property,  the  annuitant  refused  her  consent  to  the 
transfer,  and  so  the  bargain  went  off.  The  jury  found  first  that  the 
defendants  bona  fide  believed  that  they  would  be  able  to  make  the 
purchaser  a  good  title  free  from  incumbrance,  and  secondly  that 
they  had  reasonable  grounds  for  so  believing.  After  a  full  discus- 
sion of  the  cases  previously  decided,  Mr.  Justice  Blackburn  de- 
livered judgment  for  himself  and  Mr.  Justice  Wightman  in  favor  of 
the  defendants,  holding  that  the  rule  in  Flureau  v.  Thornhill  (2  W. 
Bl.  1078)  applied.  Lord  Chief  Justice  Cockbukn  differed,  and  held 
that  the  case  fell  within  the  rule  in  Hopkins  v.  Grazebrook  (6  B.  & 
C.  31),  and  Kobinson  v.  Harman  (1  Ex.  850).  The  judgment  of  the 
5 


GG  REAL   ESTATE. 

two  learned  judges  who  held  for  the  defendants,  though  it  expresses 
great  doubt  as  to  the  soundness  of  the  decision  in  Hopkins  v.  Graze- 
brook  (6  B.  &  C.  31),  and  also  as  to  the  ground  of  that  decision,  ul- 
timately proceeds  upon  the  narrow  ground  that  "it  is  impossible  to 
say  as  a  matter  of  law  that  there  is  misconduct  in  putting  property 
up  to  sale  without  disclosing  every  material  fact,  and  that  the  only 
ground  for  imputing  misconduct  was  putting  up  the  property  for 
sale,  though  they  knew  that  their  power  of  making  a  title  free  from 
ineumbrance  was  precarious,  which  the  jury"  (under  the  circum- 
stances of  the  unretracted  promise  at  the  time  of  the  contract)  "  had 
found  to  have  been  done  bona  fide,  and  not  unreasonably."  The 
judgment  of  the  Court  of  Exchequer  Chamber,  delivered  by  Lord 
Chief  Justice  Erle  (4  B.  &  S.  423),  after  stating  the  rule  in  Flureau 
v.  Thornhill  (2  W.  Bl.  1078),  goes  on  to  say,  "  The  damages  here 
therefore  must  be  assessed  according  to  the  rule  in  Flureau  v.  Thorn- 
hill  (2  "W".  Bl.  1078),  unless  the  case  comes  within  the  exception  in 
Hopkins  v.  Grazebrook  (6  B.  &  C.  31),  namely,  that  if  the  intended 
vendor  knowingly  withholds  from  the  intended  vendee  that  he  has 
not  a  title,  he  is  guilty  of  culpable  want  of  truth,  and  is  bound  to 
make  the  latter  compensation  for  the  loss  of  his  bargain,  and  ought 
not  to  have  the  protection  of  the  doctrine  established  by  Flureau  v. 
Thornhill  (2  W.  Bl.  1078)."  It  may  be  observed  that  this  is  cer- 
tainly a  somewhat  free  translation  of  the  decision  in  Hopkins  v. 
Grazebrook  (6  B.  &  C.  31).  The  learned  Chief  Justice  then  states 
the  proposal  made  to  the  annuitant  as  to  a  change  of  the  property 
upon  which  her  annuity  was  to  be  charged,  and  goes  on,  "  She  as- 
sented, and  it  might  reasonably  have  been  supposed  that  she  would 
continue  in  that  mind  to  the  last.  Under  these  circumstances  the 
failure  to  make  a  title  does  not  bring  the  case  within  Hopkins  v. 
Grazebrook  (6  B.  &  C.  31)."  Upon  the  full  consideration  of  these 
judgments,  it  appears  to  me  that  they  do  not  govern  the  present 
case.  The  existence  of  a  parol  promise  to  consent  to  the  transfer  of 
the  incumbrance,  was  there  the  circumstance  relied  upon  to  save  the 
application  of  the  rule  in  Flureau  v.  Thornhill  (2  W.  Bl.  1078), 
whereas  in  the  present  case,  so  far  from  the  existence,  at  the  time  of 
the  contract  in  1867  of  any  promise  on  the  part  of  the  lessors  to  con- 
sent to  a  sale  by  the  defendants  to  the  plaintiffs,  all  the  facts  stated 
in  the  case,  especially  the  notice  in  October,  1865,  seem  to  me  to 
show  that  there  was  no  reason  for  assuming  such  consent.  More- 
over, it  is  impossible  to  deny  that  the  authority  of  Sikes  v.  Wild  (1 
B.  &  S.  587 ;  4  Ibid.  421),  as  applicable  to  any  other  case  not  iden- 
tical in  its  facts,  is  much  weakened  by  the  forcible  judgment  of  the 


BAIN  v.   FOTHERGILL.  67 

Lord  Chief  Justice  in  the  court  below,  in  favor  of  the  plaintiff.  Af- 
ter commenting  on  the  rule  in  Flureau  v.  Thornhill  (2  W.  Bl.  1078), 
and  the  reasons  upon  which  it  is  founded,  he  adds,  "  But  I  can  see 
no  reason,  in  the  absence  of  authority,  for  extending  the  exception 
to  parties  who,  knowing  that  they  have  not  any  present  estate  to 
convey,  take  upon  themselves  to  sell  in  the  speculative  belief  that  they 
will  be  able  to  "procure  an  interest  and  title  before  they  are  called  upon 
to  execute  the  conveyance.  There  is  an  obvious  difference  between 
an  owner,  who  knows  that  he  alone  is  entitled  to  an  estate  and  has  a 
right  to  sell  it,  although  he  may  fail  to  make  out  a  sufficient  title, 
and  the  person  who  not  having  the  estate  takes  upon  him  to  sell  on 
the  expectation  of  acquiring  the  estate  in  time  and  making  out  a 
title."  Even  if  the  majority  of  the  court  in  that  case,  and  the  jury 
by  their  finding,  were  right  in  holding  that  there  was  there  a  reason- 
able expectation,  as  distinguished  from  a  speculative  belief,  I  can  see 
nothing  of  the  kind  in  the  present  case,  which  therefore,  in  my 
opinion,  is  not  affected  by  the  case  of  Sikes  v.  Wild  (1  B.  &  S.  587 ; 
4  Ibid.  421),  even  assuming  that  case  to  have  been  correctly  decided. 
The  present  case  was  not  argued  in  the  Exchequer  Chamber  in  con- 
sequence of  an  understanding  between  counsel  that  the  case  of  En- 
gel  v.  Fitch  (Law  Rep.  3  Q.  B.  314 ;  in  error,  4  Ibid.  659)  bore  so 
closely  upon  it  that  it  was  desirable  to  proceed  at  once  to  your  lord- 
ships' house  after  a  formal  judgment  for  the  defendants,  in  order 
that  the  whole  subject  might  be  freely  discussed.  Upon  a  careful 
perusal  of  the  case  of  Engel  v.  Fitch  (Law  Rep.  3  Q.  B.  314 ;  in  er- 
ror, 4  Ibid.  659),  I  am  unable  to  perceive  that  it  bears  so  closely 
upon  the  present  case  as  appears  to  have  been  supposed  at  that  time. 
Both  in  the  Queen's  Bench  and  in  the  Court  of  Error,  the  case  was 
decided  upon  the  ground  that  the  breach  of  contract  having  arisen 
from  the  neglect  of  the  defendants  to  do  an  act  within  their  power, 
in  order  to  complete  the  title,  and  not  from  inability  to  make  a  title, 
Flureau  v.  Thornhill  (2  W.  Bl.  1078)  did  not  apply.  In  the  present 
case,  I  do  not  think  that  the  facts  show  that  the  defendants  were  in 
a  position,  even  if  they  had  so  chosen,  to  get  over  the  difficulty 
which  existed,  but  on  the  contrary,  that  it  was  a  matter  wholly  be- 
yond their  control.  The  case,  however,  is  of  great  value,  as  show- 
ing beyond  all  question  that  the  rule  in  Flureau  v.  Thornhill  (2  ~W\ 
Bl.  1078)  is  a  rule  wholly  confined  to  cases  of  inability  to  make  a 
title,  and  not  to  breaches  of  contract  in  respect  of  the  sale  of  real 
ptroperty  from  whatsoever  cause  arising.  Lord  Chief  Baron  Kelly, 
in  Engel  v.  Fitch  (Law  Rep.  4  Q.  B.  666)  speaks,  as  I  venture  to 
think,  with  correctness  of  the  rule  as  "  a  qualification  of  the  rule  of 


68  REAL   ESTATE. 

common  law,  founded  entirely  on  the  difficulty  that  a  vendor  often 
finds  in  making  a  title  to  real  estate,  not  from  any  default  on  his  part, 
but  from  his  ignorance  of  the  strict  legal  state  of  his  title." 

I  come  now  to  consider  the  judgments  of  the  learned  barons  of 
the  exchequer  in  the  present  case.     Those  judgments  were  delivered 
without  time  taken  to  consider,  and  they  are  not  all  founded  upon 
the  same  grounds.     Mr.  Baron  Martin  passes  over  what  I  feel  to  be 
the  main  difficulty  in  the  defendants'  way  by  the  observation  "  the 
defendants  were  willing  to  complete  their  contract,  and  only  failed 
because  they  failed  to  get  the  consent  which  they  might  reasonably 
have  supposed  there  would  be  no  difficulty  in  getting."     It  appears 
to  me,  on  the  contrary,  that,  under  the  circumstances  of  the  case, 
there  was  nothing  to  justify  them  in  making  such  a  contract  with 
the  knowledge  they  possessed,  without  communicating  the  present 
defect  of  their  title  to  the  intending  purchaser,  and  certainly  nothing 
to  justify  them  in  assuming  that  that  defect  would  be  cured.     The 
judgment  of  Mr.  Baron  Channel  seems  to  proceed  upon  the  suppo- 
sition that  the  rule  in  Flureau  v.  Thornhill  (2  W.  Bl.  1078)  applies 
wherever  fraud  is  not  suggested,  for  which  position  he  says  that 
Pounsett  v.  Fuller  (17  C.  B.  660)  and  Sikes  v.  Wild  (1  B.  &  S.  587 ; 
4  Ibid.  421)  seem  to  be  strong  authorities.     To  this  I  do  not  assent, 
for  the  reasons  explained  above.     Mr.  Baron  Cleasby  proceeds  on  a 
wholly  different  ground  from  his  learned  brethren,  and  bases  his  de- 
cision on  the  ground  that  the  defendants  having  merely  contracted 
to  sell  "  their  interest  "  had  in  fact  only  sold  their  interest,  such  as  it 
was,  in  a  contract  relative  to  the  property,  and  not  any  legal  interest 
whatever.     But,  as  pointed  out  by  Mr.  Baron  Maetin  in  his  judg- 
ment, this  view  of  the  case,  if  correct,  would  show  that  the  defend- 
ants were  not  liable  for  any  breach  of  contract  at  all,  a  point  never 
suggested  on  their  behalf,  and  I  think  it  plain  that  the  meaning  of 
the  contract  cannot  be  so  restricted.     The  very  words  "  We  offer  to 
sell  you  our  interest,"  must,  I  think,  be  construed  as  an  offer  to  sell 
something  which  they  had  an  unrestricted  right  to  sell,  and  the  sub- 
sequent words  as  to  payment  of  £2,500,  "  to  be  paid  in  cash  on  our 
handing  you  a  transfer  of  the  said  royalty"  are,  in  my  opinion, 
quite  inconsistent  with  the  supposition  that  both  parties  could  be 
held  to  have  contracted  deliberately  upon  any  other  basis  than  that 
the  defendants  had  an  absolute  right  to  convey,  subject  only  to  un- 
anticipated difficulties  in  making  out  the  titles. 

For  these  reasons  I  am  of  opinion  that  the  rule  in  Flureau  v. 
Thornhill  (2  W.  Bl.  1078)  is  not  applicable  to  the  present  case,  and 
that  the  plaintiffs  are  entitled  to  such  damages  for  the  loss  of  their 
bargain  as  the  arbitrator  appointed  may  assess. 


BAIN   v.   FOTHERGILL.  69 

Mr.  Baron  Pigott. — In  answer  to  the  questions  submitted  by 
your  lordships  to  the  judges,  I  am  of  opinion,  first,  that  upon  a  con- 
tract for  the  sale  of  real  estate,  where  the  vendor,  without  his  default, 
is  unable  to  make  a  good  title,  the  purchaser  is  not  by  law  entitled, 
to  recover  damages  for  the  loss  of  his  bargain. 

Secondly,  that  the  actual  possession  of  the  property,  the  subject 
of  the  contract,  is  not  essential  to  bring  the  case  within  the  rule  laid 
down  in  Flureau  v.  Thornhill  (2  "W.  Bl.  1078).  And,  lastly,  that  the 
circumstances  of  the  present  case  do  not  distinguish  it  from  the  case 
of  Flureau  v.  Thornhill  (2  W.  Bl.  1078). 

I  base  my  answers  to  the  first  and  second  questions  of  your  lord- 
ships upon  the  decision  "in  Flureau  v.  Thornhill  (2  W.  Bl.  1078), 
which  is,  in  my  opinion,  both  good  law  and  good  sense.  I  think 
that  it  would  have  been  impolitic  and  unjust  to  allow  damages  to  be 
recovered  in  such  a  case  for  the  loss  of  the  bargain. 

The  court  considered  it  an  exceptional  case,  taking  it  out  of  the 
ordinary  rule  as  to  damages,  but  confining  the  exception  to  cases 
where  (to  use  the  words  of  the  Chief  Justice)  "  without  fraud"  a 
vendor  teas  incapable  of  making  a  good  title  to  real  estate.  If  the 
vendor  by  his  own  default  had  caused  the  breach,  that  would  be,  I 
conceive,  in  the  nature  of  a  fraud  upon  the  vendee,  and  would  dis- 
entitle the  former  to  the  benefit  of  the  exception. 

The  reasons  for  such  an  exception  seem  both  evident  and  cogent. 
No  man,  not  a  lawyer,  could,  from  the  difficulty  of  the  subject, 
know,  in  the  majority  of  cases,  the  state  of  his  title  to  land,  and  this 
was  well  known  to  both  vendors  and  purchasers  ;  hence  Blackstone, 
J.,  said,  "  these  contracts  are  upon  condition  that  the  vendor  has  a 
good  title,"  implying  that  it  was  at  that  time  a  well  understood  term 
of  such  contracts  within  the  contemplation  of  all  parties.  Without 
such  a  term  being  implied,  every  man  must  have  expressed  it  in  his 
contract,  or  have  incurred  beforehand  an  expensive  investigation  of 
his  title ;  or  another  very  probable  result  would  have  been  that  such 
contracts  would  be  unduly  discouraged  by  the  fear  of  consequences 
which  vendors  could  not  foresee.  Such  being  the  circumstances  un- 
der which  these  contracts  were  entered  into,  it  was,  in  my  opinion, 
highly  reasonable  that  the  court  should  infer  that  the  parties  con- 
tracted with  reference  to  them,  and  that  the  damages  for  a  breach 
should  be  assessed  upon  the  principle  thus  contemplated  by  both.  I 
submit  also  that  the  rule  was  intended  to  be  a  broad  and  plain  one, 
making  no  distinction,  and  calling  for  none,  whether  the  vendor  was 
at  the  time  of  his  contract  in  possession  or  not. 

The  case  thus  decided  one  hundred  years  ago,  has  been,  with  very 


70  REAL   ESTATE. 

slight  exceptions,  acted  upon  ever  since.  Its  soundness  has  been 
generally  admitted  and  approved,  and  it  must  be  taken,  I  think,  that 
all  subsequent  contracts  for  the  sale  of  real  estates  have  proceeded 
upon  the  law  thus  established.  Perhaps  many  such  contracts  may 
be  now  in  existence,  and  it  would  not  only  be  hard  to  apply  to  them 
an  ex  post  facto  law,  but,  I  venture  to  think,  that  only  the  most  irre- 
sistible reasons  should  induce  your  lordships  to  disturb  that  decision. 

In  the  year  1826,  Hopkins  v.  Grazebrook  (6  B.  &  C.  31)  seems  to 
have  cast  some  disparagement  upon  Flureau  v.  Thornhill  (2  TV.  Bl. 
1078),  but  that  case  went  in  the  result  no  farther  than  to  engraft  an 
exception  upon  it. 

The  facts  were  that  the  defendant  had  put  up  for  sale  part  of  an 
estate  which  belonged  to  one  Hill.  Hill  had  contracted  for  the  sale 
of  it  to  Harwood,  and  defendant  had  contracted  to  purchase  the 
same  from  Harwood.  The  case  only  states  that  "  a  misunderstand- 
ing arose  between  Hill  and  Harwood,"  and  the  conveyance  to  the 
latter  was  never  executed.  In  consequence  of  this  dispute,  defend- 
ant (who  acted  honafide  throughout)  was  unable  to  complete  his  con- 
tract, and  was  sued  for  the  breach  of  it.  It  is  not  very  clearly  to  be 
collected  from  the  case  what  the  disjDute  was  about ;  but  assuming, 
as  I  do  from  the  argument  and  judgments,  that  it  was  upon  defect- 
ive title,  I  venture  humbly  to  submit  that  the  distinction  has  no  real 
foundation. 

The  Chief  Justice  Abbott  says,  "  The  defendant  unfortunately 
put  the  estate  up  to  auction  before  he  got  a  conveyance  ; "  and  Bat- 
ley,  J.,  says,  "  The  case  of  Flureau  v.  Thornhill  (2  W.  Bl.  1078)  is 
very  different,  for  here  the  vendor  had  nothing  but  an  equitable 
title." 

But  no  reason  is  given  why  a  person  may  not  as  properly  con- 
tract for  the  sale  of  an  estate  to  which  he  is  entitled  in  equity  as 
well  as  in  law.  He  is  (ex  hypothesi)  entitled  to  the  thing  he  con- 
tracts to  sell  (which  is  the  estate),  and  he  is  bound  to  perform  his 
contract.  The  contract  does  not  express,  nor  necessarily  assume, 
that  he  is  actually  in  possession  of  the  estate,  or  anything  more  than 
that  he  is  so  far  entitled  to  possession  that  he  will  be  able  to  give  it 
at  the  proper  time  to  his  vendee,  nor  does  it  assume  that  he  has  had 
it  conveyed  it  in  law  to  him.  It  is  a  contract  to  convey  and  give 
possession  within  the  time  fixed,  or  within  a  reasonable  time,  subject 
to  the  implied  condition  that  the  title  be  not  objected  to  by  the  pur- 
chaser. If  this  be  the  whole  effect  of  the  contract,  there  seems  to 
be  no  ground  for  saying,  as  the  Chief  Justice  did,  "  that  he  was 
bound  to  have  had  a  conveyance  before  he  put  it  up  to  auction ; " 


BAIN"  t.   FOTHERGILL.  71 

or  in  the  language  of  Batlet,  J.,  that  "  the  purchaser  might  pre- 
sume that  he  had  had  a  satisfactory  title,  and  if  he  had  not,  that  he 
may  very  fairly  be  compelled  to  pay  the  loss  which  the  purchaser 
sustains  by  not  having  that  for  which  he  contracted."  But  a  reason 
altogether  different  from  these  is  ascribed  for  this  decision  of  Chief 
Justice  Abbott  in  the  judgment  of  Sikes  v.  "Wild  (1  B.  &  S.  587), 
viz.,  that  the  Chief  Justice  thought  it  illegal  and  against  public 
policy  to  contract  to  sell  things  of  which  the  vendor  was  not  in  pos- 
session. I  need  not  say  this  is  a  ground  hardly  tenable  at  the  pres- 
ent day.  I  must,  however,  refer  your  lordships  to  the  judgment  of 
the  Court  of  Queen's  Bench  in  the  case  of  Engel  v.  Fitch  (Law  Rep. 
3  Q.  B.  314 ;  in  error,  4  Ibid.  659)  in  1868,  with  reference  to  Hop- 
kins v.  Grazebrook  (6  B.  &  C.  31).  The  Lord  Chief  Justice  certain- 
ly says,  "  It  stands  upon  a  perfectly  intelligible  and  sound  founda- 
tion ;  "  and  he  adds  "  there  is  an  obvious  difference  between  the  case 
of  a  man  who,  being  in  possession  and  the  undoubted  owner  of  real 
property,  is  unable  to  make  out  a  marketable  title,  and  that  of  one 
who  not  being  the  owner,  but  having  only  a  contract  for  the  pur- 
chase, takes  npon  himself  to  sell  it  to  another  as  his  own,  and  as  if 
the  title  were  his  to  convey  "  (&c.)  Now,  with  great  respect  to  so 
high  an  authority,  it  seems  to  me  that  the  alternatives  here  present- 
ed come  to  very  much  the  same  result,  viz.,  who  is  the  owner  of  the 
estate,  and  as  such  entitled  by  law  to  deal  with  it  in  contract  ? 

The  vendor  has  ceased  to  have  the  power  of  disposing  of  it,  while 
the  vendee  may  have  good  reason  to  believe  that  the  title  is  unob- 
jectionable, and  that  he  can  with  perfect  bona  fides  offer  it  for  sale. 
Why  may  he  not  do  so  ?  It  is  difficult  to  see  ;  for  if  he  were  in  pos- 
session his  title  may  prove  defective,  and  it  is  only  an  equal  chance 
that  it  may  prove  so  where  he  is  entitled  to  possession  by  contract. 

In  Walker  v.  Moore  (10  B.  &  C.  422),  Littledale,  J.,  said, 
"When  a  contract  for  the  purchase  of  lands  is  made,  each  party 
cannot  but  know  that  the  title  may  prove  defective,  and  must  be 
taken  to  proceed  upon  that  knowledge  ; "  and  Pabke,  J.,  says,  "  in 
the  absence  of  any  express  stipulation  about  it,  the  parties  must  be 
considered  as  content  that  the  damages  in  the  event  of  the  title 
proving  defective  shall  be  measured  in  the  ordinary  way,  and  that 
excludes  the  claim  of  damages  on  account  of  the  supposed  goodness 
of  the  bargain." 

1  would  refer  especially  to  another  case  in  which  Flureau  v. 
Thornhill  (2  W.  Bl.  1078)  was  followed,  viz.,  Pounsett  v.  Fuller  (17 
C.  B.  660).  It  differed  in  its  circumstances  in  this  important  par- 
ticular, that  there  the  defendant  had  only  an  agreement  in  writing 


72  REAL  ESTATE. 

but  not  under  seal,  for  a  right  of  shooting  over  a  manor  for  four 
years.  He  contracted  to  sell  this  right  to  the  plaintiff  (together 
with  a  furnished  cottage  which  does  not  seem  to  have  been  held  un- 
der the  agreement  with  the  shooting).  But  in  consequence  of  the 
objection  of  his  lessor  the  defendant  was  unable  to  complete  his  con- 
tract for  the  shooting.  The  court  said  that  it  fell  within  the  de- 
cisions of  Flureau  v.  Thornhill  (2  W.  Bl.  10Y8)  and  Walker  v.  Moore 
(10  B.  &  C.  422),  because  the  defendant  was  not  to  blame,  and  the 
judgment  of  Chief  Justice  Jeevis  goes  on  to  say,  "  though  legally 
and  technically  he  had  not  acquired  a  right  to  sell  what  he  professed 
to  sell  to  the  plaintiff,  since  he  had  no  agreement  under  seal,  still  he, 
as  a  layman,  might  fairly  believe  that  as  he  had  signed  a  written 
agreement,  he  had  a  right  to  sell,  and  was  therefore  not  to  blame  for 
entering  into  a  contract  to  sell."  Mr.  Justice  Ceesswell  indeed  as- 
sumes that  the  defendant  was  in  possession  of  the  shooting ;  but  the 
judgment  of  Mr.  Justice  "Williams,  whilst  it  goes  farther  in  the  ex- 
pressions of  approbation  of  Flureau  v.  Thornhill  (2  W.  Bl.  1078),  as 
laying  down  a  rule  called  for  by  the  position  of  the  parties  to  such 
contracts,  goes  on  to  say,  "  Here  it  is  true  defendant  had  nothing  but 
an  equitable  title,  hut  he  did  not  know  that  he  had  not  a  perfectly  good 
title:' 

This  was  followed  by  the  case  of  Sikes  v.  Wild  (1  B.  &  S.  587 ; 
in  error,  4  Ibid.  421)  in  the  Queen's  Bench,  to  the  same  effect ;  and 
that  case  was  affirmed  on  error. 

The  defendants  were  devisees  under  the  will  of  E.,  upon  trust  to 
sell  the  land,  and  to  pay  out  of  the  interest  of  the  proceeds  £100  per 
annum  to  his  wife.  The  estate  was  held  subject  to  a  settlement  by 
which  the  legal  estate  was  hi  trustees  for  securing  that  sum  to  her. 
The  defendants  offered  the  land  for  sale,  believing  that  the  wife 
would,  in  accordance  with  advice,  concur  in  the  conveyance  of  the 
land  free  from  incumbrance.  After  sale  and  a  deposit  paid  she  re- 
fused to  concur,  and  the  plaintiff  claimed  damages  for  the  loss  of  his 
bargain.  In  the  Court  of  Queen's  Bench,  Justices  Wigiitman  and 
Blackburn  held  that  it  came  within  the  rule  of  Flureau  v.  Thornhill 
(2  W.  Bl.  1078),  and  their  judgment  was  affirmed  by  the  Exchequer 
Chamber.  The  Lord  Chief  Justice  Cockbuen,  in  the  court  below, 
held  that  it  came  within  the  exception  engrafted  upon  it  by  Hop- 
kins v.  Grazebrook  (6  B.  &  C.  31),  but  the  whole  of  the  judges  in 
both  courts,  nine  in  number,  approved  of  the  rule  in  Flureau  v. 
Thornhill  (2  W.  Bl.  1078). 

I  beg  leave  to  refer  your  lordships  to  the  judgment  delivered  by 
Mr.  Justice  Blackbuen,  in  Sikes  v.  Wild  (1  B.  &  S.  587 ;  in  error,  4 


BAIN  v.   FOTHERGILL.  73 

Ibid.  421),  both  for  the  very  exhaustive  review  which  it  takes  of  the 
whole  of  the  cases  bearing  upon  this  subject,  and  especially  for  the 
observations  there  made  upon  Hopkins  v.  Grazebrook,  in  which  I 
entirely  agree.  The  latter  passage  is  this  (1  B.  &  S.  594,  595),  "  We 
think  that  it  will  be  worthy  of  the  consideration  of  any  court  com- 
petent to  review  that  case,  whether  the  strong  opinion  of  Lord  St. 
Leonards,  reported  in  his  13th  edition  of  Yendors  and  Purchasers, 
p.  301,  does  not  show  that  the  general  understanding  of  conveyan- 
cers has  been  misapprehended,"  and  he  adds,  "  it  is  impossible  to  say, 
as  a  matter  of  law,  that  there  is  misconduct  in  putting  up  property 
for  sale  without  describing  every  material  fact,  as  if  it  was  a  case  of 
marine  insurance."  The  case  was  decided  in  Trinity  Term,  1861  ; 
and  in  the  edition  of  Yendors  and  Purchasers  in  the  following  year, 
the  learned  author  in  his  commentary  upon  the  decision  writes  thus  : 
"  This  seems  to  be  the  true  rule  ;  it  is  a  point  which,  whilst  at  the 
bar,  I  should  have  treated  as  beyond  doubt."  Upon  these  authorities, 
and  for  these  reasons,  I  submit  that  both  the  first  and  second  ques- 
tions of  your  lordships  should  be  answered  in  the  affirmative  in  point 
of  law. 

The  third  question  of  your  lordships  depends  upon  the  facts, 
which  are,  that  Anthony  Hill  was  possessed  of  a  mine  called  Wal- 
ter's Royalty,  by  virtue  of  an  agreement  dated  the  19th  of  October, 

1861,  for  a  term  of  twenty-one  years.  The  agreement  contained  a 
clause  against  assignment  or  subletting  without  the  consent  of  the 
lessors  in  writing  first  had.     Anthony  Hill  died  on  the  2d  of  August, 

1862.  His  executors  in  August,  1863,  contracted  with  defendants. 
for  the  sale  to  them  of  (inter  alia)  Miss  Walter's  Royalty. 

This  purchase  had  not  been  completed  on  the  17th  of  October, 
1867.  The  executors  applied  to  the  lessors  for,  and  they  were  will- 
ing to  give,  consent  to  the  above  assignment,  provided  the  defend- 
ants would  execute  a  duplicate  of  it.  A  consent  in  writing  was  ac- 
cordingly prepared  in  duplicate,  and  on  the  16th  of  June,  1865,  one 
part  was  executed  by  the  lessors,  and  retained  in  the  hands  of  their 
solicitor.  The  other  part  was  sent  on  the  15th  of  June,  1865,  to 
Messrs.  Upton  &  Co.,  the  solicitors  for  the  executors,  in  order  that 
they  might  "obtain  the  signature  of  the  defendants,  and  then  ex- 
change it  for  the  one  executed  by  the  lessors.  The  duplicate  was 
about  that  time  sent  by  Messrs.  Upton  to  defendants'  solicitors  for 
execution  by  the  defendants.  On  two  or  three  occasions  the  lessors' 
solicitors  requested  the  solicitors  of  the  executors  to  obtain  the  exe- 
cution by  the  defendants  of  this  duplicate,  and  about  the  11th  of 
October,  1865,  intimated  that  the  lessors  would  withdraw  their  con- 


71  REAL   ESTATE. 

sent  unless  the  duplicate  was  returned  executed  in  a  few  clays.  The 
solicitors  of  the  executors  wrote  on  the  11th  of  October  to  the  so- 
licitors of  the  defendants  a  letter. 

The  duplicate  remained  unexecuted  in  the  hands  of  defendants' 
solicitors  on  the  17th  of  October,  1867,  when  the  agreement  now  in 
question  was  entered  into.  On  that  morning  one  of  the  plaintiffs 
saw  the  defendant  Fothergill,  with  the  view  to  purchase  Miss  Wal- 
ter's Royalty ;  they  discussed  terms  and  entered  into  the  agreement 
on  that  date,  the  17th  of  October,  1867. 

Before  the  17th  of  October,  Mr.  Fothergill  had  been  told  that  it 
would  be  necessary  to  obtain  the  consent  of  the  lessors  for  the  as- 
signment to  third  parties  of  the  defendants'  interest  in  the  royalty, 
and  no  mention  was  made  by  him  to  Mr.  Paterson  of  the  necessity 
for  such  consent.  The  case  states  as  a  reason  for  this  "  either  it  did 
not  cross  his  mind,  or  if  it  did  occur  to  him,  he  forebore  to  mention 
it,  feeling  sure  that  no  difficulty  would  arise  with  respect  to  such 
consent,  and  that  it  was,  therefore,  a  matter  of  no  importance." 

In  the  result,  after  every  endeavor  had  been  made  to  induce  the 
lessors  to  give  their  consent  to  the  assignment,  their  consent  was 
finally  refused,  and  the  defendants  were,  therefore,  unable  to  com- 
plete their  contract  with  the  plaintiffs.  From  these  statements  I 
infer  that  the  defendants  acted  bona  fide  in  making  the  contract 
with  the  plaintiffs,  that  they  had  an  equitable  title  to  the  mine  at 
the  time,  and  that  they  were  prevented  from  carrying  out  the  com- 
pletion of  the  contract  without  any  fraud  or  default  (in  the  nature 
of  misconduct)  on  their  part,  but  in  consequence  solely  of  a  defect 
in  their  title,  which  they  had  not  the  power  to  cure.  The  utmost 
that  can  be  urged  against  them  is  a  knowledge  that  they  required 
the  consent  of  the  lessor,  which  they  did  not  communicate,  but  their 
is  no  pretense  for  saying  that  they  knew  or  thought  that  they  were 
not  sure  to  obtain  it.  As  they  honestly  believed  that  they  should 
get  it  at  the  time  when  they  sold,  it  seems  to  me  to  be  conclusive 
of  the  case. 

Upon  the  whole,  therefore,  I  beg  to  state  it  as  my  opinion  that 
the  exception  as  to  damages  which  was  established  by  Flureau  v. 
Thornhill  (2  W.  Bl.  1078)  applies  to  the  present  case. 

Lord  Chelmsford. — My  lords,  this  appeal  brings  in  review  before 
your  lordships  the  case  of  Flureau  v.  Thornhill  (2  W.  Bl.  1078)  and 
other  cases  which  have  engrafted  exceptions  upon  it  ;  and  the  first 
question  to  be  considered  is  whether  that  case  was  rightly  decided. 
The  decision  took  place  very  nearly  a  century  ago,  in  the  year  1775, 
and  has  been  followed  ever  since ;  not,  however,  without  an  oc- 


BAIN  v.   FOTHERGILL.  75 

casional  expression  of  doubt  as  to  its  soundness.  Should  your  lord- 
ships happen  to  share  in  this  doubt,  you  would  be  extremely  reluct- 
ant to  disturb  the  rule  which  it  laid  down  for  the  assessment  of  dam- 
ages upon  contracts  for  the  sale  of  real  estates,  and  which  has  been 
so  long  acted  upon,  unless  you  were  clearly  convinced  that  it  is  erro- 
neous and  ought  no  longer  to  be  maintained. 

Now,  the  rule  established  by  Flureau  v.  Thornhill  (2  TV.  Bl.  1078) 
is,  that  upon  a  contract  for  the  purchase  of  a  real  estate,  if  the  ven- 
dor, without  fraud,  is  incapable  of  making  a  good  title,  the  intended 
purchaser  is  not  entitled  to  any  compensation  for  the  loss  of  his  bar- 
gain. The  case  is  very  shortly  reported.  Lord  Chief  Justice  De 
Grey  merely  laid  down  the  rule,  without  giving  any  reason  for  it. 
But  Mr.  Justice  Blackstone  said  this :  "  These  contracts  are  merely 
upon  condition  frequently  expressed,  but  always  implied,  that  the 
vendor  has  a  good  title." 

The  rule  and  the  reason  for  it  have  been  adopted  and  followed  in 
subsequent  cases.  In  TValker  v.  Moore  (10  B.  &  C.  416),  where  the 
plaintiff  contracted  with  the  defendant  for  the  purchase  of  a  real  es- 
tate ;  the  vendor,  acting  bona  fide,  delivered  an  abstract  showing  a 
good  title,  and  the  plaintiff,  before  he  compared  it  with  the  original 
deeds,  contracted  to  sell  several  portions  of  the  property  at  a  consid- 
erable profit.  Upon  an  examination  of  the  abstract  with  the  deeds 
it  was  found  that  the  title  was  defective.  The  plaintiff  refused  to 
complete  his  purchase,  and  brought  his  action  claiming,  amongst 
other  damages,  the  profit  that  would  have  accrued  to  him  from  the 
resale  of  the  property.  It  was  held  that  he  was  not  entitled  to  these 
damages.  Mr.  Justice  Pakke  said  :  "A  jury  ought  not,  in  the  case 
of  a  vendor  in  possession,  to  give  any  other  damages,  in  consequence 
of  a  defect  being  found  in  the  title,  than  those  which  were  allowed 
in  Flureau  v.  Thornhill  (2  TV.  Bl.  1078),  which  was  recognized  in 
Johnson  v.  Johnson  (3  B.  &  P.  162),  Bratt  v.  Ellis  (Sugd.  Y.  &  P. 
11th  ed.  Ap.  No.  4),  and  Jones  v.  Dyke  (Ibid.  No.  5).  In  the  ab- 
sence of  any  express  stipulation  about  it,  the  parties  must  be  consid- 
ered as  content  that  the  damages  in  the  event  of  the  title  proving 
defective  shall  be  measured  in  the  ordinary  way,  and  that  excludes 
the  claim  of  damages  on  account  of  the  supposed  goodness  of  the 
bargain." 

The  same  learned  judge  recognized  the  authority  of  Flureau  v. 
Thornhill  (2  TV.  Bl.  1078)  in  the  case  of  Kobinson  v.  Harman  (1  Ex. 
855).  He  there  said  :  "  The  case  of  Flureau  v.  Thornhill  (2  TV.  Bl. 
1078)  qualified  the  rule  of  the  common  law  that  where  a  party  sus- 
tains a  loss  by  reason  of  a  breach  of  contract,  lie  is,  so  far  as  money 


76  REAL   ESTATE. 

can  do  it,  to  be  placed  in  the  same  situation  with  respect  to  damages 
as  if  the  contract  had  been  performed."  Again,  in  Pounsett  v.  Ful- 
ler (17  C.  B.  CGO),  the  court,  following  the  rule  in  Flureau  v.  Thorn- 
hill  (2  "W.  EL  1078),  held  that  where  a  vendor  failed  to  make  a  good 
title  pursuant  to  his  contract,  the  purchaser  (in  the  absence  of  fraud 
or  misrepresentation  on  the  part  of  the  vendor)  was  not  entitled  to 
damages  for  the  loss  of  his  bargain.  Mr.  Justice  Cress  well,  in  de- 
livering his  opinion,  said  :  "  We  are  not  called  upon  here  to  investi- 
gate the  grounds  upon  which  the  decision  in  Flureau  v.  Thornhill  (2 
W.  Bl.  1078)  proceeded,  or  to  pronounce  any  opinion  as  to  the  wis- 
dom or  the  expediency  of  the  rule  there  laid  down.  It  is  enough 
for  us  to  say  that  it  has  been  received  and  acted  upon  in  too  many 
subsequent  cases  to  allow  us  now  to  call  it  in  question."  And  in  the 
recent  case  of  Sikes  v.  "Wild,  the  Court  of  Queen's  Bench  (1  B.  &  S. 
587)  and  the  Court  of  Exchequer  Chamber  (4  B.  &  S.  421)  adopted 
the  rule  and  acted  upon  it. 

In  a  more  recent  case  of  Engel  v.  Fitch  (Law  Rep.  3  Q.  B.  314  ; 
in  error,  4  Ibid.  659),  to  which  I  shall  presently  have  occasion  more 
particularly  to  refer,  Lord  Chief  Justice  Cockbukn,  in  an  elaborate 
judgment,  expressed  his  opinion  that  the  case  of  Flureau  v.  Thorn- 
hill  (2  "W".  Bl.  1078)  was  unsatisfactory,  and  gave  his  sanction  to 
Lord  Chief  Justice  Abbott's  doubt  as  to  the  soundness  of  the  de- 
cision in  that  case. 

There  is,  perhaps,  some  difficulty  in  ascertaining  the  exact 
grounds  of  the  judgment  in  Flureau  v.  Thornhill  (2  W.  Bl.  1078) ; 
but,  in  addition  to  those  which  have  been  previously  assigned,  it 
seems  to  me  that  the  following  considerations  may  be  suggested  as 
in  some  degree  supporting  the  correctness  of  the  decision :  "  The 
fancied  goodness  of  the  bargain  "  must  be  a  matter  of  a  purely  specu- 
lative character,  and  in  most  cases  would  probably  be  very  difficult 
to  determine,  in  consequence  of  the  conflicting  opinions  likely  to  be 
formed  upon  the  subject ;  and  even  if  it  could  be  proved  to  have 
been  a  beneficial  purchase,  the  loss  of  the  pecuniary  advantage  to  be 
derived  from  a  resale  appears  to  me  to  be  a  consequence  too  remote 
from  the  breach  of  the  contract.  I  am  aware  that  in  Engel  v.  Fitch 
(Law  Rep.  3  Q.  B.  314 ;  in  error,  4  Ibid.  659),  where,  after  the  con- 
tract and  before  the  breach  of  it,  the  purchaser  contracted  for  a  re- 
sale at  an  advance  of  £105,  the  Court  of  Queen's  Bench  and  the 
Court  of  Exchequer  Chamber,  though  pressed  with  the  decision  in 
Hadley  v.  Baxendale  (9  Ex.  341),  held  that  "  if  an  increase  in  value 
has  taken  place  between  the  contract  and  the  breach,  such  an  in- 
crease may  be  taken  to  have  been  in  the  contemplation  of  the  par- 


BAIN  v.   FOTHERGILL.  77 

ties  within  the  meaning  of  that  case."  But  it  must  be  borne  in 
mind  that  this  question  as  to  damages  depends,  as  Baron  Aldeeson 
said  in  Hadley  v.  Baxendale  (9  Ex.  341),  upon  what  "  may  reasonably 
be  supposed  to  have  been  in  the  contemplation  of  both  parties  at  the 
time  they  made  the  contract  as  the  probable  result  of  the  breach  of 
it."  Now,  although  the  purchaser  in  Engel  v.  Fitch  (Law  Rep.  3 
Q.  B.  314 ;  in  error,  4  Ibid.  659),  when  he  entered  into  the  contract, 
may  have  contemplated  a  resale  at  an  advance,  it  is  not  at  all  likely 
that  the  loss  of  this  profit  should  have  occurred  to  the  vendor  as  the 
probable  result  of  the  breach  of  his  contract.  The  judges  were  bo 
doubt  influenced  by  the  fact  of  the  profitable  resale  having  actually 
taken  place,  and  were,  in  consequence,  drawn  aside  from  considering 
what  must  have  been  in  the  minds  of  both  parties  at  the  precise 
time  when  they  made  the  contract. 

The  decision  in  Flureau  v.  Thornhill  (2  W.  Bl.  1078)  derives 
great  additional  authority  from  the  opinion  of  Lord  St.  Leonards, 
who,  in  his  work  on  the  Law  of  Yendors  and  Purchasers  (14th  ed. 
p.  360),  considers  that  it  was  rightly  decided. 

The  almost  unanimous  approval  of  the  decision  in  Flureau  v. 
Thornhill  (2  W.  Bl.  1078)  was  broken  in  upon  by  an  expression  of 
disapprobation  from  Chief  Justice  Abbott  in  the  case  of  Hopkins  v. 
Grazebrook  (6  B.  &  C.  31),  to  which  I  have  already  alluded.  He 
there  said  :  "  Upon  the  present  occasion  I  will  only  say,  that  if  it  is 
advanced  as  a  general  proposition  that  where  a  vendor  cannot  make 
a  good  title  the  purchaser  shall  recover  nothing  more  than  nominal 
damages,  I  am  by  no  means  prepared  to  assent  to  it.  If  it  were 
necessary  to  decide  that  point  I  should  desire  to  have  time  for  con- 
sideration." As  the  case  of  Hopkins  v.  Grazebrook  (6  B.  &  C.  31) 
was  one  which,  according  to  the  opinion  of  the  court,  was  not  within 
the  operation  of  the  rule  in  Flureau  v.  Thornhill  (2  W.  Bl.  1078), 
there  was  no  occasion  for  this  passing  reflection  upon  that  case, 
which  had  been  then  silently  acquiesced  in  for  fifty  years. 

In  Hopkins  v.  Grazebrook  (6  B.  &  C.  31),  a  person  who  had  con- 
tracted for  the  purchase  of  an  estate,  but  had  not  obtained  a  convey- 
ance, put  up  the  estate  for  sale  in  lots  by  auction,  and  engaged  to 
make  a  good  title  by  a  certain  day,  which  he  was  unable  to  do,  as 
his  vendor  never  made  a  conveyance  to  him,  and  it  was  held  that  a 
purchaser  of  certain  lots  at  the  auction  might,  in  an  action  for  not 
making  a  good  title,  recover  not  only  the  expenses  which  he  had 
incurred,  but  also  damages  which  he  sustained  by  not  having  the 
contract  carried  into  effect.  Chief  Justice  Abbott  said :  "  The  de- 
fendant had  unfortunately  put  the  estate  up  to  auction  before  he  got 


78  REAL  ESTATE. 

a  conveyance.  He  should  not  have  taken  such  a  step  without  ascer- 
taining that  lie  would  be  in  a  situation  to  offer  some  title,  and  hav- 
ing entered  into  a  contract  to  sell  without  the  power  to  confer  even 
the  shadow  of  a  title,  I  think  he  must  be  responsible  for  the  damage 
sustained  by  a  breach  of  his  contract."  And  Justice  Bayley  said  : 
u  The  case  of  Flureau  v.  Thornhill  (2  W.  Bl.  1078)  is  very  different 
from  this,  for  here  the  vendor  had  nothing  but  an  equitable  title." 

The  decision  itself  in  Hopkins  v.  Grazebrook  (6  B.  &  C.  31)  can- 
not be  supported.  The  seller  in  that  case  had  undoubtedly  an  equi- 
table estate  in  respect  of  which  he  had  a  right  to  contract.  There- 
fore the  language  of  Chief  Justice  Abbott,  that  "  the  defendant  had 
entered  into  a  contract  to  sell  without  the  power  to  confer  even  the 
shadow  of  a  title,"  is  not  warranted  by  the  circumstances  of  the  case, 
as  the  defendant  could  certainly  have  assigned  his  equitable  estate ; 
and  thus  the  sole  ground  upon  which  he  held  him  responsible  for 
damages  entirely  failed.  But  although  the  facts  in  Hopkins  v. 
Grazebrook  (6  B.  &  C.  31)  did  not  justify  the  decision,  yet  the  case 
lias  always  been  treated  as  having  introduced  an  exception  to  the 
rule  in  Flureau  v.  Thornhill  (2  "W".  Bl.  1078),  and  as  having  with- 
drawn from  its  operation  a  class  of  cases  where  a  person,  knowing 
that  he  has  no  title  to  real  estate,  enters  into  a  contract  for  the  sale 
of  it.  It  is  not  correct  to  say  with  Lord  St.  Leonards  in  his  Ven- 
dors and  Purchasers  (14th  ed.  p.  359),  that  Hopkins  v.  Grazebrook 
(6  B.  &  C.  31)  has  not  been  followed.  It  has  been  recognized  in 
several  cases  since,  and  in  one  to  which  I  shall  presently  refer  it  has 
been  expressly  followed.  In  Robinson  v.  Harman  (1  Ex.  850),  al- 
ready mentioned  as  having  sanctioned  the  decision  in  Flureau  v. 
Thornhill  (2  W.  Bl.  1078),  Baron  Paeke  said  :  "  The  present  case 
comes  within  the  rule  of  the  common  law,  and  I  cannot  distinguish 
it  from  Hopkins  v.  Grazebrook  (6  B.  &  C.  31)."  And  Baron  Al- 
dekson  and  Baron  Platt  expressed  the  same  opinion.  In  Pounsett 
v.  Fuller  (17  C.  B.  660),  Hopkins  v.  Grazebrook  (6  B.  &  C.  31)  was 
treated  as  a  valid  authority  by  all  the  judges,  the  question  which 
they  considered  being  whether  the  case  fell  within  Flureau  v.  Thorn- 
hill (2  W.  Bl.  1078),  or  the  exception  in  Hopkins  v.  Grazebrook  (6 
B.  &  C.  31),  and  they  decided  that  it  was  within  the  former  case. 

But  in  the  case  of  Engel  v.  Fitch  the  Court  of  Queen's  Bench 
(Law  Rep.  3  Q.  B.  314),  and  afterwards  the  Exchequer  Chamber 
(Law  Rep.  4  Q.  B.  659,  664),  proceeded  expressly  on  the  cases  of 
Hopkins  v.  Grazebrook  (6  B.  &  C.  31)  and  Robinson  v.  Harman  (1 
Ex.  850),  the  Chief  Baron,  quoting  the  very  words  of  the  Lord  Chief 
Justice,  and  relying  on  those  cases.     In  that  case  the  mortgagees  of 


BAIN  v.   FOTHERGILL.  TO 

a  house  sold  it  by  auction  to  the  plaintiff,  the  particulars  of  sale 
stating  that  possession  would  be  given  on  completion  of  the  pur- 
chase. The  purchaser  resold  the  house  at  an  advance  in  the  price  to 
a  person  who  wanted  it  for  immediate  occupation.  The  mortgagor 
refused  to  give  up  the  possession.  The  mortgagee  could  have  oust- 
ed him  by  ejectment,  but  refused  to  do  so  on  the  ground  of  the  ex- 
pense. The  purchaser  brought  an  action  upon  the  contract  of  sale, 
and  it  was  held,  that  as  the  breach  of  contract  arose  not  from  in- 
ability of  the  defendants  to  make  a  good  title,  but  from  their  refusal 
to  take  the  necessary  steps  to  give  the  plaintiff  possession  pursuant 
to  the  contract,  he  could  recover  not  only  the  deposit  and  the  ex- 
penses of  investigating  the  title,  but  damages  for  the  loss  of  his  bar- 
gain ;  and  that  the  measure  of  such  damages  was  the  profit  which  it 
was  shown  he  would  have  made  upon  a  resale.  It  was  after  this  de- 
cision in  Engel  v.  Fitch  that  the  plaintiffs  in  error  declined  to  argue 
the  present  case  in  the  Exchequer  Chamber,  as  the  authorities  on 
the  subject  could  only  be  freely  reviewed  by  a  higher  tribunal.  The 
case  therefore  comes  to  your  lordships'  house  without  the  advantage 
of  the  opinions  of  the  learned  judges  of  that  court. 

Notwithstanding  the  repeated  recognition  of  the  authority  of 
Hopkins  v.  Grazebrook  (6  B.  &  C.  31),  I  cannot,  after  careful  con- 
sideration, acquiesce  in  the  propriety  of  that  decision.  I  speak,  of 
course,  of  the  exception  which  it  introduced  to  the  rule  established 
by  Flureau  v.  Thornhill  (2  W.  Bl.  1078),  with  respect  to  damages 
upon  the  breach  of  a  contract  for  the  sale  of  a  real  estate,  for  as  to 
the  case  itself  not  falling  within  the  exception  to  the  rule  (if  any 
such  exists),  I  suppose  no  doubt  can  now  be  entertained.  The  ex- 
ception which  the  court,  in  Hopkins  v.  Grazebrook  (6  B.  &  C.  31), 
engrafted  upon  the  rule  in  Flureau  v.  Thornhill  (2  W.  Bl.  10T8),  has 
always  been  taken  to  be  this  :  that  in  an  action  for  breach  of  a  con- 
tract for  the  sale  of  a  real  estate,  if  the  vendor  at  the  time  of  enter- 
ing into  the  contract  knew  that  he  had  no  title,  the  purchaser  has  a 
right  to  recover  damages  for  the  loss  of  his  bargain. 

In  Sedgwick  on  Damages  (1th  ed.  p.  231),  mentioned  by  Mr. 
Baron  Martin,  in  his  judgment  in  this  case,  after  a  reference  to  the 
general  rule  as  to  damages,  it  is  said,  "  To  this  general  rule  there  un- 
doubtedly exists  an  important  exception  which  has  been  introduced 
from  the  civil  law  in  regard  to  damages  recoverable  against  a  vendor 
of  real  estate  who  fails  to  perforin  and  complete  the  title.  In  these 
cases  the  line  has  been  repeatedly  drawn  between  parties  acting  in 
good  faith  and  failing  to  perform  because  they  could  not  make  a 
title,  and  parties  whose  conduct  is  tainted  with  fraud  and  bad  faith. 


80  REAL   ESTATE. 

In  the  former  case,  the  plaintiff  can  only  recover  whatever  money 
has  been  paid  by  him,  with  interest  and  expenses.  In  the  latter,  he 
is  entitled  to  damages  for  the  loss  of  his  bargain.  The  exception 
cannot,  I  think,  be  justified  or  explained  on  principle,  but  it  is  well 
settled  in  practice."  I  quite  agree  that  the  distinction  as  to  damages 
in  cases  of  contracts  for  the  sale  of  real  estate,  where  the  vendor  acts 
bona  fide,  and  where  his  conduct  is  tainted  with  fraud  or  bad  faith, 
is  not  to  be  "  justified  or  explained  on  principle." 

I  fully  agree  in  the  doubt  expressed  by  Mr.  Justice  Blackburn, 
in  Sikes  v.  Wild  (1  B.  &  S.  594),  as  to  the  soundness  of  the  excep- 
tion in  Hopkins  v.  Grazebrook  (6  B.  &  C.  31),  and  in  the  observa- 
tions which  follow  the  expression  of  that  doubt.  The  learned  judge 
said,  "  I  do  not  see  how  the  existence  of  misconduct  can  alter  the 
rule  by  which  damages  for  the  breach  of  a  contract  are  to  be  assessed  ; 
it  may  render  the  contract  voidable  on  the  ground  of  fraud,  or 
give  a  cause  of  action  for  deceit,  but  surely  it  cannot  alter  the  effect 
of  the  contract  itself.  And  if  it  be  said  that  the  rule  depends  upon 
an  implied  condition  resulting  from  the  general  understanding  of 
vendors  and  purchasers  (which  is  the  ground  taken  by  Mr.  Justice 
Parke  in  Walker  v.  Moore  [10  B.  &  C.  416],  and  I  think  the  true 
one),  and  that  the  usage  is  such  that  this  implied  condition  excludes 
such  cases  as  Hopkins  v.  Grazebrook  (6  B.  &  C.  31),  I  think  that  it 
will  be  worthy  of  the  consideration  of  any  court  competent  to  re- 
view that  case,  whether  the  strong  opinion  of  Lord  St.  Leonards,  re- 
peated in  the  13th  edition  of  Vendors  and  Purchasers,  does  not  show 
that  the  "  general  understanding  of  conveyancers  has  been  misappre- 
hended." In  the  14th  edition  of  his  work  (pp.  360,  361),  Lord  St. 
Leonards  quotes  the  whole  of  the  above  passage  from  Mr.  Justice 
Blackburn's  judgment,  and  adds,  "  this  seems  to  be  the  true  rule  ;  it 
is  a  point  which,  whilst  at  the  bar,  I  should  have  treated  as  beyond 
doubt." 

Upon  a  review  of  all  the  decisions  on  the  subject,  I  think  that 
the  case  of  Hopkins  v.  Grazebrook  (6  B.  &  C.  31)  ought  not  any 
longer  to  be  regarded  as  an  authority.  Entertaining  this  opinion,  I 
can  have  no  doubt  that  the  judgment  of  the  Court  of  Exchequer  in 
the  present  case  is  right,  whether  it  falls  within  the  rule  as  estab- 
tablished  by  Flureau  v.  Thornhill  (2  W.  Bl.  1078),  or  is  to  be  consid- 
ered as  involving  circumstances  which  have  been  regarded  as  remov- 
ing cases  from  the  influence  of  that  rule  ;  because  I  think  the  rule  as 
to  the  limits  within  which  damages  may  be  recovered  upon  the 
breach  of  a  contract  for  the  sale  of  a  real  estate  must  be  taken  to  be 
without  exception.     If  a  person  enters  into  a  contract  for  the  sale  of 


BAIN  v.  F0THERG1LL.  81 

a  real  estate,  knowing  that  he  has  no  title  to  it,  nor  any  means  of  ac- 
quiring it,  the  purchaser  cannot  recover  damages  beyond  the  ex- 
penses he  has  incurred  by  an  action  for  the  breach  of  the  contract ; 
he  can  only  obtain  other  damages  by  an  action  for  deceit. 

It  is  only  necessary  to  add  that,  in  my  opinion,  if  there  were  any 
exceptional  cases  from  the  rule  in  Flureau  v.  Thornhill  (2  TV.  Bl. 
1078),  the  present  case  would  not  fall  within  any  of  them,  but  is 
within  the  rule  itself.  The  respondents,  when  they  entered  into  the 
contract  for  the  sale  of  Miss  Walter's  Royalty,  had  an  equitable  title 
to  the  mine,  which  they  might  have  perfected  by  obtaining  the  les- 
sors' consent  to  the  assignment  to  them.  This  consent  had  not  been 
obtained  at  the  time  the  contract  was  entered  into,  and  the  fact  was 
not  communicated  to  the  intended  purchaser.  The  reason  for  this 
non-communication  is  stated  in  the  case  to  be,  that  "  either  it  did  not 
cross  the  mind  of  the  respondent  Fothergill,  or,  if  it  did  occur  to 
him,  he  forebore  to  mention  it,  feeling  sure  that  no  difficulty  would 
arise  with  respect  to  such  consent,  and  that  it  was  therefore  a  mat- 
ter of  no  importance."  There  is  no  reason  to  think  that  the  re- 
spondents were  not  acting  throughout  under  a  bona  fide  belief  that 
the  lessors'  consent  might  be  obtained  at  any  time  upon  application. 
They  were  prevented  performing  their  contract,  not  from  any  fraud 
or  willful  act  on  their  part,  but  by  an  unexpected  defect  in  their  title 
which  it  was  beyond  their  power  to  cure. 

The  case  falls  precisely  within  the  terms  of  the  rule  as  stated  in 
Flureau  v.  Thornhill  (2  W.  Bl.  1078) ;  and  therefore,  in  my  opinion, 
the  judgment  appealed  from  is  right  and  ought  to  be  affirmed. 

Loed  Hatheelet. — My  lords,  I  entirely  concur  in  the  view  which 
has  been  expressed  by  my  noble  and  learned  friend  who  has  just  ad- 
dressed your  lordships. 

If  the  question  in  this  case  depends  entirely  upon  the  case  of 
Flureau  v.  Thornhill  (2  ~W.  Bl.  1078),  it  can  scarcely,  in  my  judg- 
ment, after  the  lapse  of  time  which  has  taken  place  since  that  de- 
cision, be  argued  at  your  lordships'  bar.  I  certainly  remember  my- 
self, now  more  than  fifty  years  ago,  when  I  was  reading  in  cham- 
bers, to  have  heard  that  it  was  considered  as  a  settled  rule  that  no 
damages  could  be  recovered  for  the  loss  of  the  benefit  of  a  bargain  in 
case  a  good  title  could  not  be  made  out  by  a  vendor  to  his  pur- 
chaser. That  was  then  considered  as  settled  by  the  decision  in  Flu- 
reau v.  Thornhill  (2  W.  Bl.  1078),  which  had  taken  place  forty-nine 
years  before  that  time ;  that  would  make  it  altogether  ninety-nine 
years  from  the  present  time.  Therefore,  my  lords,  for  ninety-nine 
years  the  rule  nas  prevailed  as  settled  by  Flureau  v.  Thornhill  (2  "W. 
6 


82  REAL   ESTATE. 

Bl.  1078),  and  it  has  affected  and  governed,  I  may  say,  thousands 
and  thousands  of  transactions  annually,  for  undoubtedly  the  con- 
tracts for  the  sale  of  real  estate  may  be  reckoned  by  thousands  an- 
nually, and  nobody,  I  apprehend,  has  as  yet  ever  contradicted  it. 
Whatever  may  have  been  the  expressions  of  dissatisfaction  that  have 
been  uttered  with  regard  to  that  decision,  nobody  has  come  to  the 
conclusion  that  the  rule  as  established  in  Flureau  v.  Thornhill  (2 
W.  Bl.  1078)  should  be  overthrown.  Now,  my  lords,  upon  a  much 
less  extensive  series  of  practice  by  conveyancers,  your  lordships' 
house  has  been  in  the  habit  of  acting ;  but  in  this  case  there  is  not 
merely  the  practice  of  conveyancers,  but  the  common  dealings  of 
mankind,  which,  continuing  year  after  year,  as  I  have  said,  in  many 
thousands  of  cases,  have  required  the  practice  to  be  put  into  effect. 
As  far,  therefore,  as  this  case  falls  within  the  rule  in  Flureau  v. 
Thornhill  (2  W.  Bl.  1078)  it  must  be  considered  as  one  beyond  all 
doubt. 

As  regards  the  case  of  Engel  v.  Fitch  (Law  Rep.  3  Q.  B.  314 ; 
in  error,  4  Ibid.  659)  (I  do  not  speak  for  the  moment  with  regard  to 
the  case  of  Hopkins  v.  Grazebrook  [6  B.  &  C.  31]  ),  that  certainly 
was  a  very  peculiar  case,  whether  the  course  taken  by  the  court  was 
correct  or  not  in  the  decision  upon  the  point  of  damages  arising  in 
consequence  of  the  loss  of  the  benefit  of  the  contract.  The  vendor 
in  that  case  was  bound  by  his  contract,  as  every  vendor  is  bound  by 
his  contract,  to  do  all  that  he  could  to  complete  the  conveyance. 
Whenever  it  is  a  matter  of  conveyancing,  and  not  a  matter  of  title, 
it  is  the  duty  of  the  vendor  to  do  everything  that  he  is  enabled  to  do 
by  force  of  his  own  interest,  and  also  by  force  of  the  interest  of 
others  whom  he  can  compel  to  concur  in  the  conveyance.  In  Engel 
v.  Fitch  (Law  Rep.  3  Q.  B.  314  ;  in  error,  4  Ibid.  659)  a  man  having 
sold  his  estate,  but  having  failed  to  do  everything  in  his  power  to 
compel  possession  of  the  estate  to  be  given  up,  and  being  in  a  con- 
dition in  which,  if  a  bill  had  been  filed  in  equity,  he  would  have 
been  compelled  by  the  court  to  take  proceedings  in  order  to  obtain 
the  delivery  up  of  possession  according  to  his  contract  with  his  ven- 
dee, he  refused  to  take  any  such  proceedings  whatever,  simply  upon 
the  ground  of  the  expense  it  might  entail  on  him.  There  could  be 
no  doubt  whatever  in  that  case  that  he  was  acting  in  gross  violation 
of  his  contract  which  he  had  the  power  of  performing.  Whether  or 
not  the  proper  mode  of  correcting  that  abuse  was  by  giving  damages 
to  the  plaintiff  in  respect  of  the  loss  of  his  contract,  I  will  not  stop 
to  inquire.  But  it  is  quite  clear  that  that  case  was  exceedingly  dif- 
ferent from  the  case  of  Flureau  v.  Thornhill  (2  W.  Bl.  1078),  where 
it  turned  out  on  investigation  that  the  vendor  had  no  legal  title. 


BAIN  v.  FOTHERGILL.  83 

The  reasons  given  for  the  judgment  in  Flureau  v.  Thornhill  (2 
"W".  Bl.  1078)  were  certainly  not  altogether  satisfactory,  because  the 
Lord  Chief  Justice  is  said,  upon  that  occasion,  to  have  stated  simpli- 
citer,  without  alleging  any  ground  whatever  for  the  decision,  that 
upon  a  contract  for  a  purchase,  if  the  title  proves  bad  and  the  ven- 
dor is  (without  fraud)  incapable  of  making  a  good  one,  the  purchaser 
is  not  entitled  to  any  damages  for  the  fancied  goodness  of  the  bar- 
gain ;  to  which  Mr.  Justice  Blackstone  added  that  "  these  contracts 
are  merely  upon  a  condition  frequently  expressed,  but  always  im- 
plied, that  the  vendor  has  a  good  title."  That  is  scarcely  a  correct 
representation  of  the  case,  because  if  the  vendor's  contract  with  his 
vendee  was  on  the  condition  that  he  had  a  good  title,  then  in  the 
event  of  the  title  failing,  there  would  be  no  action  for  damages  what- 
ever, and  there  would  be  no  power  in  the  vendee  to  do  that  which 
he  is  always  entitled  in  equity  to  do,  namely,  to  insist  upon  having 
the  title  good  or  bad,  if  he  should  be  so  minded ;  if  the  title  is  de- 
fective, and  if  it  is  so  stated,  the  vendee  is  always  allowed  to  have 
the  benefit  of  the  contract. 

Therefore  the  reason  is  not  that  the  contract  is  made  upon  that 
condition,  but  the  foundation  of  the  rule  has  been  already  more 
clearly  expressed  by  my  noble  and  learned  friend  who  has  preceded 
me  in  saying  that,  having  regard  to  the  very  nature  of  this  trans- 
action in  the  dealings  of  mankind  in  the  purchase  and  sale  of  real  es- 
tates, it  is  recognized  on  all  hands  that  the  purchaser  knows  on  his 
part  that  there  must  be  some  degree  of  uncertainty  as  to  whether, 
with  all  the  complications  of  our  law,  a  good  title  can  be  effectively 
made  by  his  vendor ;  and  taking  the  property  with  that  knowledge, 
he  is  not  to  be  held  entitled  to  recover  any  loss  on  the  bargain  he 
may  have  made,  if  in  effect  it  should  turn  out  that  the  vendor  is  in- 
capable of  completing  his  contract  in  consequence  of  his  defective 
title.  All  that  he  is  entitled  to  is  the  expense  he  may  have  been  put 
to  in  investigating  that  matter.  He  has  a  right  also  to  take  the  es- 
tate and  complete  the  purchase  with  that  defective  title,  if  he  thinks 
proper  so  to  do,  but  he  is  held  to  have  bargained  with  the  vendor 
upon  the  footing  that  he  (the  vendee)  shall  not  be  entitled,  under  all 
circumstances,  to  have  that  contract  completed,  and  therefore  he  is 
not  put  in  a  position  under  such  a  contract  to  make  a  resale  before 
the  matter  has  been  fully  investigated,  and  before  it  is  ascertained 
whether  or  not  the  title  of  his  vendor  is  a  good  one. 

A  contract  for  a  sale  of  real  estate  is  very  different  indeed  from 
a  contract  for  a  sale  of  a  chattel,  where  the  vendor  must  know  what 
his  right  to  the  chattel  is,  or  at  all  events  is  taken  to  know  what  his 


84  REAL  ESTATE. 

right  to  the  chattel  is.  And,  farther,  in  the  case  of  chattels,  we  well 
know,  as  regards  the  larger  part  of  those  contracts  at  least,  that  the 
chattels  are  purchased  with  a  view  to  resale,  and  therefore  the  whole 
transaction  between  the  two  parties  is  upon  the  footing  and  upon 
the  faith,  that  all  the  expense  or  loss  that  may  be  incurred,  whether 
it  be  by  the  vendee  being  put  to  the  expense  of  making  any  inquiry 
upon  the  subject,  or  whether  it  be  by  a  loss  of  profit  which  he  might 
have  obtained  if  the  chattel  had  been  delivered  to  him,  is  within  the 
contemplation  of  both  parties,  and  that  is  therefore  assumed  to  be 
the  actual  contract  which  the  vendor  wished  to  enter  into. 

The  only  question  therefore  really  remaining  in  the  case,  assu- 
ming that  your  lordships  will  not  think  it  right  to  act  contrary  to 
the  practice  which  has  prevailed  ever  since  the  decision  of  Flureau 
v.  Thornhill  (2  W.  Bl.  1078),  is,  whether  or  not  the  present  case  can 
be  distinguished  in  any  way  from  that  decision.     It  appears  to  me, 
my  lords,  that  there  is  nothing  whatever  in  the  case  to  distinguish 
it.     The  contract  was  made  bona  fide  (there  is  no  allegation  to  the 
contrary)  by  the  vendor,  in  the  genuine  belief  that  he  had  a  good 
title.     The  circumstance  that  there  had  been  some  litigation  before 
as  between  him  and  his  original  lessors,  from  whom  he  derived  the 
lease  which  he  sold,  as  to  whether  or  not  they  would  give  their  con- 
sent to  an  assignment,  is  not,  as  it  appears  to  me,  a  circumstance 
which  necessarily  implies  that  there  was  any  want  of  good  faith  on 
his  part  in  offering  to  sell  the  property,  he  being  in  the  full  belief 
that  his  lessors  might  reasonably  assent,  and  being  consequently  in 
the  full  belief  that  that  assent  would  be  given.     Nor,  in  the  case 
which  is  suggested  as  an  alternative,  of  his  having  forgotten  alto- 
gether the  circumstance  of  the  existence  of  that  necessary  ingredient 
in  his  title,  would  the  case  be  at  all  different  from  that  of  any  ven- 
dor who  believed,  at  any  period  of  the  existence  of  his  title,  that 
there  was  some  difficulty  existing  in  it,  but  forgot  that  circumstance 
at  the  time  of  his  making  his  bargain ;  in  which  case  the  vendor, 
with  a  good  conscience  might  be  brought  within  the  rule  in  Flureau 
v.  Thornhill  (2  W.  Bl.  1078), 

I  entirely  agree  with  the  comments  which  my  noble  and  learned 
friend  has  made  upon  the  case  of  Hopkins  v.  Grazebrook  (6  B.  &  C. 
31).  I  think  it  would  be  impossible  to  say,  regard  being  had  to  the 
principles  upon  which  the  courts  have  proceeded  since  the  rule  in 
Flureau  v.  Thornhill  (2  W.  Bl.  1078)  was  laid  down,  that  Hopkins  v. 
Grazebrook  (6  B.  &  C.  31)  can  substantially  be  distinguished  from 
that  case  ;  because  in  Hopkins  v.  Grazebrook  (6  B.  &  C.  31)  the  ven- 
dor had  made  a  bargain  with  another  person  for  the  purchase  of  a 


BAIN  v.   FOTHERGILL.  85 

property  which  he  had  every  reason  to  suppose  would  be  conveyed 
to  him  within  a  certain  reasonable  time.  Having  made  that  bargain, 
he  made  another  contract  for  the  sale  of  the  same  property.  He 
was  just  in  the  same  position  as  any  other  vendor  having  an  equi- 
table title  transferred  to  him,  who  might  under  those  circumstances 
choose  to  sell  it  himself,  as  the  defendant  chose  in  that  case  to  make 
a  sale  of  that  property.  The  circumstance  of  his  not  being  in  pos- 
session, when  you  look  at  the  complicated  law  which  governs  real  es- 
tate in  this  country,  is  not  a  circumstance  which  in  itself  ought  at  all 
to  lead  the  court  to  say  that  he  must  have  known  that  he  could  not 
complete  the  title.  In  a  vast  number  of  instances,  from  a  variety  of 
circumstances,  the  actual  vendor  may  not  be  immediately  in  posses- 
sion, although  he  may  have  a  right  to  obtain  that  possession  in  a 
reasonable  time,  and  to  compel  (as  the  vendor  had  a  right  to  do  in 
Engel  v.  Fitch  [Law  Kep.  3  Q.  B.  314 ;  in  error,  4  Ibid.  659]  )  those 
who  are  in  possession  to  hand  over  that  possession  to  him.  I  do  not 
think,  therefore,  that  there  is  any  sound  distinction  between  the  case 
of  Hopkins  v.  Grazebrook  (6  B.  &  C.  31)  and  that  class  of  authorities 
which  are  governed  by  Flureau  v.  Thornhill  (2  W.  Bl.  10T8). 

My  lords,  under  these  circumstances,  I  have  no  hesitation  in 
coming  to  the  conclusion  that  the  decision  of  the  court  now  appealed 
from  was  right  and  ought  to  be  affirmed. 

Judgment  of  the  courts  below  affirmed. 

Note. — In  the  plan  of  this  collection  it  was  intended  to  include  reports  of  all 
the  principal  English,  and  of  several  of  the  prominent  American  decisions,  relating 
to  the  subject  discussed  in  the  foregoing  case.  But  it  is  found  that  this  would 
increase  the  size  of  the  volume  unduly,  and  give  a  disproportionate  space  to  the 
illustration  of  rules  of  damages  in  relation  to  sales  of  real  estate,  or  contracts  for 
such  sales;  and  as  the  history  of  the  subject  is  so  elaborately  reviewed  in  the  dif- 
ferent opinions  in  Bain  v.  Fothergill,  it  is  determined  to  omit  most  of  the  reports 
referred  to. 

In  an  action  for  the  breach  of  the  covenant  for  quiet  enjoyment  contained  in 
a  lease,  the  ordinary  rule  that  the  purchaser  can  only  recover  what  he  has  paid, 
and  his  expenses,  does  not  apply.  If  he  have  been  prevented  by  the  breach  from 
entering  on  the  demised  premises  under  his  lease,  he  is  entitled  to  recover  its 
value.  If  he  have  entered  and  been  evicted,  he  is  entitled  to  the  value  of  the  un- 
expired term.  Locke  v.  Fuzre,  14  W.  R.  403 ;  15  L.  T.  N.  S.  161  Exch. ;  afli'g 
19  C.  B.  N.  S.  96;  34  L.  T.  C.  P.  N.  S.  201;  L.  R.  1  C.  P.  441;  13  W.  R.  971. 
Mack  v.  Patchin,  42  N.  Y.  167. 

In  the  case  of  Pumpelly  v.  Phelps,  40  N.  Y.  59,  where  a  trustee  authorized  to 
convey  lands  only  on  obtaining  the  written  consent  of  his  cestui  que  trust,  con- 
tracted, in  his  own  name,  to  sell  without  having  obtained  such  written  consent, 
although  he  at  the  time,  in  good  faith,  expected  to  be  able  to  procure  it,  and  af- 
terwards, on  account  of  the  refusal  of  the  cestui  que  trust  to  give  the  written  con- 


86  REAL   ESTATE. 

sent,  was  unable  to  give  title,  it  was  held,  by  a  majority  of  the  Court  of  Appeals 
of  New  York,  that  the  purchaser  was  entitled  to  recover  of  the  vendor  the  dif- 
ference between  the  contract  price  of  the  land  and  its  value  at  the  time  of  the 
breach. 

In  a  subsequent  case  a  widow  having  only  a  dower  right  in  a  lot  of  land,  the 
title  to  which  was  in  her  children,  three  of  whom  were  infants,  contracted  to  sell 
the  lot  to  the  plaintiff  for  a  little  more  than  a  third  of  its  actual  value,  of  which 
she  was  ignorant,  while  the  plaintiff  was  aware  of  it.  Before  the  making  of  the 
contract  the  lot  had  been  sold  for  taxes,  and  a  lease  of  it  given  pursuant  to  the 
sale.  These  facts  the  widow  was  ignorant  of,  but  they  were  known  to  the  pur- 
chaser, who  also  knew  that  the  widow  could  only  convey  by  judicial  authority. 
This  of  course  would  not  be  given  unless  the  actual  value  of  the  property  were 
concealed  from  the  court.  These  features  were  held  to  distinguish  this  case  from 
that  of  Pumpelly  v.  Phelps  (supra),  and  it  was  held  that  the  plaintiff  was  entitled 
to  recover,  not  the  difference  between  the  contract  price  and  the  value  of  the 
land,  but  only  so  much  of  the  purchase  money  as  had  been  paid,  with  interest. 
Margraf  v.  Muir,  57  K  Y.  155. 

The  defendant  leased  to  the  plaintiff  a  hotel  and  certain  adjoining  premises 
in  the  city  of  New  York,  covenanting  to  tear  down  an  old  building  on  the  ad- 
joining premises,  and  erect,  in  place  of  it,  a  new  one,  to  form  part  of  the  hotel, 
and  also  covenanting  to  put  the  plaintiff  in  possession  of  it  by  a  specified  time. 
The  plaintiff  was  then  occupying  the  hotel  and  a  building  on  a  portion  of  the 
adjoining  premises  under  a  former  lease.  He  removed  his  furniture  and  stored 
it  while  the  new  building  was  in  process  of  construction. 

In  an  action  to  recover  damages  for  the  defendant's  breach  of  the  agreement 
to  complete  the  new  building  within  the  time  agreed,  the  plaintiff  was  held  en- 
titled to  recover  the  value  of  the  use  for  hotel  purposes  of  the  rooms  in  the  new 
building  during  the  time  he  was  deprived  of  the  use  of  them  by  the  defendant's 
default;  and  as  to  such  of  them  as  the  plaintiff  had  furniture  for,  he  was  entitled 
to  the  value  of  their  use  as  furnished  rooms. 

The  defendant  also  covenanted  in  the  lease  to  make  certain  repairs  to  the 
hotel.  Upon  his  failure  to  make  them  it  was  the  plaintiff's  right  to  do  so,  and 
charge  the  expense  to  the  landlord,  but  he  was  not  bound  to  make  the  repairs. 
He  was  entitled  to  recover  the  value  of  the  use  of  any  part  of  the  premises 
during  the  time  they  were  made  untenantable  by  the  defendant's  neglect.  Hexter 
v.  Knox,  63  N.  Y.  561. 

In  a  late  case  in  Maine,  which  was  an  action  for  damages  for  the  breach  of  an 
agreement  to  convey  land,  it  was  held:  1.  That  the  plaintiff's  damages  were  to 
be  measured  by  the  value  of  the  land  at  the  date  of  the  breach;  2.  That  this  rule 
was  not  waived,  because  the  defendant,  though  acting  in  good  faith,  was  unable 
to  convey;  and  3,  That  the  plaintiff,  at  his  election,  in  case  of  total  failure  to 
convey,  might  rescind  the  contract  and  recover  so  much  of  the  consideration  as 
had  been  paid,  and  interest.     Doherty  v.  Dolan,  65  Maine,  87. 


PLUMMER  v.  RIGDON.  87 

X1875.]      George  W.   Plummer  v.  Charles  W.  Eigdon  (78 

111.  222). 

1.  Measure  of  Damages — for  failure  to  convey  land.     In  an  action  by  a  purchaser  of 

land  to  recover  damages  for  a  failure  to  convey,  the  value  of  the  land  at  the  time  the 
conveyance  is  to  be  made,  is  the  true  measure  of  damages. 

2.  Same — on  an  agreement  to  exchange  lands.     So  in  case  of  an  agreement  to  exchange 

lands,  and  one  of  the  parties  knew  at  the  time  that  he  had  no  title  to  the  land  which 
he  agreed  to  convey,  in  an  action  against  him  by  the  other  party  to  recover  damages 
for  a  failure  to  convey,  the  extent  of  the  recovery  should  be  measured  by  the  value 
of  the  land  to  be  conveyed  to  the  plaintiff,  and  for  the  reason  that  the  defendant  sold 
land  which,  at  the  time  he  made  the  contract,  he  knew  he  did  not  own. 

Appeal  from  the  Superior  Court  of  Cook  county;  the  Hon. 
John  Bckns,  Judge,  presiding. 

Mr.  Justice  Craig  delivered  the  opinion  of  the  court : 

This  was  an  action  of  assumpsit,  brought  by  Charles  "W.  Pigdon, 
to  recover  damages  from  George  "W.  Plummer,  for  the  breach  of  a 
written  contract  executed  by  the  parties  for  the  exchange  of  certain 
real  estate  in  Chicago. 

A  trial  of  the  cause  before  a  jury  resulted  in  a  verdict  in  favor 
of  Pigdon,  for  $3,000.  The  court  denied  a  motion  for  a  new  trial, 
and  rendered  judgment  upon  the  verdict,  to  reverse  which,  this  ap- 
peal was  brought. 

It  is  first  urged  that,  even  if  the  measure  of  damages  had  been 
the  difference  in  value  between  the  lands  agreed  to  be  exchanged, 
the  verdict  is  against  the  evidence. 

The  court,  after  holding  that  the  verdict  could  not  be  set  aside 
as  against  the  weight  of  evidence,  proceeded  as  follows : 

The  next  question  properly  arising  upon  the  record,  involves  a 
consideration  of  the  instructions  in  regard  to  the  measure  of  dam- 
ages. 

The  court,  at  the  instance  of  the  appellee,  instructed  the  jury,  in 
substance,  that  the  measure  of  damages  was  the  difference  between 
the  value  of  the  lands  agreed  to  be  exchanged,  and  refused  the  in- 
structions of  appellant  which,  in  substance,  confined  the  recovery  to 
actual  expenses  and  damages  suffered,  excluding  any  difference  in 
the  value  of  the  property  agreed  to  be  exchanged. 

It  is  clear,  from  the  evidence,  that  appellant's  failure  to  convey 
the  property  embraced  in  the  contract  did  not  arise  from  any  impure 
motive  or  fraudulent  purpose.  The  difficulty  was,  that  he  only  had 
title  to  an  undivided  half  of  the  property  agreed  to  be  conveyed, 


88  REAL  ESTATE. 

while  the  other  undivided  half  was  in  one  McClintock,  who  refused 
to  join  in  the  conveyance,  and  carry  out  the  written  contract  of  sale 
which  appellant  had  entered  into. 

Appellant,  no  doubt,  at  the  time  he  made  the  contract,  thought 
and  honestly  believed  that  McClintock,  who  was,  at  the  time,  his 
father-in-law,  would  join  with  him  in  the  conveyance  of  the  prop- 
erty. This,  however,  McClintock  refused  to  do.  This  left  appel- 
lant powerless  to  perform  the  contract. 

The  question,  then,  presented  is  this:  Where  a  vendor  contracts 
to  sell  real  estate  for  a  stipulated  price,  at  a  certain  time,  and,  upon 
the  arrival  of  the  appointed  time,  is  unable  to  convey,  in  an  action 
brought  by  the  vendee  to  recover  for  a  breach  of  the  contract,  what 
is  the  true  measure  of  damages  ? 

This  point  arose  at  an  early  day  in  this  State,  and,  independent 
of  what  view  we  might  now  be  inclined  to  take,  were  it  a  new  ques- 
tion, it  must  be  regarded  as  settled  by  the  former  decisions  of  this 
court. 

In  Buckmaster  v.  Grundy  (1  Scam.  310),  which  was  an  action  of 
covenant,  brought  by  the  vendee  against  the  vendor,  to  recover  dam- 
ages for  a  failure  of  the  vendor  to  convey  lands  as  required  by  a  con- 
tract under  seal,  the  court  said :  "  It  is  also  urged  that  the  exact  sum 
actually  paid  must  not  only  be  averred  but  proved,  and  that  the  sum 
so  paid  and  interest  constitute  a  measure  of  damages  to  be  assessed 
by  the  jury.  Though  this  may  be  the  rule  in  an  action  upon  a  war- 
ranty, to  recover  back  the  consideration,  in  case  of  eviction,  it  is  not 
the  rule  in  an  action  of  covenant  for  a  breach  in  failing  to  convey 
according  to  the  terms  of  the  contract.  In  such  case,  the  value  of 
the  land  at  the  time  it  is  to  be  conveyed  (as  established  by  evidence) 
is  the  true  measure  of  damages." 

The  same  question  again  arose  in  McKee  v.  Brandon  (2  Scam. 
339),  and  the  court,  in  deciding  the  point,  said  :  "  The  rule  was  cor- 
rectly laid  down,  that  the  measure  of  damages  for  the  non-convey- 
ance of  the  land,  was  the  value  of  the  land  at  the  time  it  was  to  be 
conveyed." 

In  Gale  v.  Dean  (20  111.  320),  which  was  an  action  brought  by 
Dean  against  Gale,  to  recover  for  a  breach  of  a  contract  which  pro- 
vided that  Gale  should  procure  a  conveyance  of  a  tract  of  land  from 
a  third  party,  it  is  said  :  "  The  measure  of  damages  in  this  case  was 
not  the  value  of  the  land  when  the  contract  was  made,  but  its  value 
at  the  time  of  the  breach  of  that  contract." 

Under  these  authorities,  it  may  be  regarded  as  the  settled  law  in 


PLUMMER  v.  RIGDON.  89 

this  State,  that,  in  an  action  by  a  vendee  to  recover  damages  for  a 
failure  to  convey,  the  value  of  the  land  at  the  time  the  conveyance 
is  to  be  made,  is  the  true  measure  of  damages. 

It  is  true,  a  different  rule  prevails  in  England,  and  it  was  held, 
in  the  leading  case  of  Flureau  v.  Thornhill  (2  W.  Blackstone,  1078), 
that  upon  a  contract  for  a  purchase,  if  the  title  proves  bad,  and  the 
vendor  is  (without  fraud)  incapable  of  making  a  good  one,  the  pur- 
chaser was  not  entitled  to  damages  for  the  fancied  goodness  of  the 
bargain  which  he  supposed  he  had  lost. 

But  even  in  that  country  the  decisions  of  the  courts  do  not  seem 
to  be  harmonious  upon  the  question,  and,  notwithstanding  the  clear 
enunciation  of  the  rule  in  Flureau  v.  Thornhill  (supra),  in  the  later 
case,  of  Hopkins  v.  Grazebrook  (6  Barn.  &  Cres.  31),  it  was  said : 
"  Upon  the  present  occasion,  I  will  only  say  that,  if  it  is  advanced  as 
a  general  proposition,  that,  where  a  vendor  cannot  make  a  good  title, 
the  purchaser  shall  recover  nothing  more  than  nominal  damages,  I 
am  by  no  means  prepared  to  assent  to  it."  The  defendant  was 
accordingly  held  responsible  for  the  damages  sustained  by  a  breach 
of  the  contract. 

In  Eobinson  v.  Harmon  (1  Excheq.  849),  the  same  rale  was  ap- 
plied. See,  also,  Pounsett  v.  Fuller  (17  Com.  B.  660).  These  decis- 
ions last  cited  proceed  upon  the  ground  that,  where  a  vendor  sells 
that  which  he  knew  he  did  not  at  the  time  own,  and  was  not  cer- 
tain of  acquiring,  he  should,  in  such  cases,  be  held  liable  for  all  dam- 
ages sustained  by  the  purchaser  by  the  loss  of  the  bargain ;  but  upon 
what  principle  these  cases  can  be  distinguished  from  Flureau  v. 
Thornhill  (supra),  in  an  action  at  law  upon  a  contract,  it  is  not  quite 
apparent. 

Under  the  doctrine  announced,  however,  in  Hopkins  v.  Graze- 
brook  (supra),  appellee  was  entitled  to  recover  damages  for  the  loss 
of  his  bargain,  which  damages  should  be  measured  by  the  value  of 
the  lands  to  be  conveyed  to  him  by  the  contract  of  purchase,  for  the 
reason  that  appellant  sold  land  which,  at  the  time  he  made  the  con- 
tract, he  knew  he  did  not  own. 

Appellant  insists  that  the  rale  which  governs  in  an  action  to 
recover  damages  for  the  breach  of  a  covenant  of  seizin,  where  the 
recovery  is  confined  to  the  purchase  money  and  interest,  should  con- 
trol in  an  action  for  a  breach  of  an  executory  contract  to  convey 
lands. 

This  is  the  rule  adopted  in  several  of  the  States.  The  rule,  how- 
ever, is  different  in  this  State,  and  we  are  satisfied  the  doctrine  an- 
nounced by  our  court  is  sustained  by  the  weight  of  authority  (Hill 


90  REAL   ESTATE. 

v.  Hobert,  16  Me.  164;  Hopkins  v.  Lee,  6  Wheaton,  109 ;  Drake  v. 
Baker,  34  1ST.  J.  358  ;  Lawrence  v.  Chase,  54  Me.  194 ;  Boardman  v. 
Keeler,  21  Vt.  84;  Kirkpatrick  v.  Downing,  58  Mo.  32 ;  Barnham  v. 
Nichols,  3  R.  I.  187 ;  Wells  v.  Aberthany,  5  Conn.  222). 

Neither  is  it  clear  why  the  rule  that  controls  in  an  action  to  re- 
cover for  a  breach  of  the  covenant  of  seizin,  should  be  applied  where 
an  action  is  brought  to  recover  for  the  breach  of  an  executory  con- 
tract. 

In  the  former  case,  we  presume  the  recovery  is  restricted  to 
the  amount  paid  for  the  land  at  the  time  the  conveyance  is  made, 
because  the  covenant  of  seizin  is  broken,  if  the  grantor  had  no  title, 
at  the  time  the  deed  was  delivered.  The  right  of  action  had  then 
accrued.  The  fact  that  eviction  subsequently  followed  for  the  want 
of  title  at  the  time  the  conveyance  was  made,  could  not  affect  the 
question,  but  a  contract  containing  a  covenant  to  convey  land  at  a 
future  day,  is  of  a  different  nature. 

The  covenant  requires  the  conveyance  to  be  made  at  a  future  day  ; 
if  the  land  rises  or  falls  in  value,  it  is  the  right  of  the  purchaser  to 
receive  a  conveyance  of  it  in  its  increased  or  diminished  condition,  on 
the  day  agreed  jipon  in  the  contract. 

If,  then,  the  vendor  fails  to  execute  a  conveyance  at  the  time  re- 
quired by  the  contract,  we  see  no  reason  why  the  damages  of  the 
vendee  should  not  be  measured  by  that  general  rule  that  gives  the 
vendee  the  value  of  the  specific  article  purchased,  on  the  day  it  is  to 
be  delivered  (Connell  v.  McLean,  6  Harris  &  J.  297). 

The  rest  of  the  report  relates  to  matters  not  material  to  the  ques- 
tion of  the  measure  of  damages. 

Judgment  affirmed. 

The  foregoing  is  given  as  an  illustration  of  those  American  authorities  which 
differ  from  the  English  rule  as  settled  by  the  preceding  case  of  Bain  v.  Fother- 
gill  (ante,  p.  45). 


Breach  of  Covenant  to  Discharge  Incumbrance  by  a  certain  Day. 


[1874.]  William  Somers  v,  Eobert  Wright  (115  Mass.  292). 

A.  agreed  in  writing  under  seal  to  sell  by  warranty  deed  a  lot  of  land  to  B.  for  a  certain 
sum  payable  in  lumber  "  at  current  retail  prices."  The  land  was  subsequently  con- 
veyed, a  mortgage  upon  it  still  existing ;  and  an  agreement  in  writing  under  seal  was 
made  between  A.  and  B.  reciting  the  conveyance  of  the  land  subject  to  a  mortgage, 
"  which  mortgage  was  according  to  previous  agreement  to  have  been  discharged 


SOMERS  v.   WRIGHT.  91 

prior  to  said  conveyance."  A.  also  covenanted  to  discharge  the  mortgage  before  a 
certain  day,  and  it  was  agreed  that  B.  should  not  pay  the  lumber  agreed  upon  as  the 
price,  above  the  amount  of  the  mortgage,  computed  at  the  current  retail  price  of  the 
lumber  delivered.  A.  did  not  discharge  the  mortgage,  and  B.  paid  it  to  prevent 
foreclosure.  Held,  that  B.  in  an  action  for  breach  of  the  second  contract  was  entitled 
to  recover  the  loss  of  profits  which  would  have  accrued  by  the  delivery  of  the  lum- 
ber, and  that  the  measure  of  damages  was  the  difference  between  the  wholesale  and 
the  retail  price  of  the  lumber. 

Where  the  measure  of  damages  is  the  plaintiff's  loss  of  profits  in  having  to  pay  cash 
when  he  is  entitled  to  pay  in  a  particular  kind  of  goods  at  retail  prices,  evidence  of 
the  profits  of  any  particular  dealer  in  such  goods  is  incompetent. 

The  vendor  of  land  agreed  to  pay  off  a  mortgage  at  a  time  certain,  the  vendee  retaining 
by  agreement  a  part  of  the  consideration  until  the  mortgage  was  discharged ;  the 
vendor  failed  to  discharge  the  mortgage  at  the  time  agreed  upon,  and  the  vendee 
paid  the  amount  due  with  interest  thereon  some  months  subsequent  to  the  time  at 
which  the  vendor  agreed  to  discharge  it.  Held,  that  vendee  was  not  entitled  to 
recover  the  interest  paid  which  accrued  after  the  date  at  which  the  vendor  agreed  to 
discharge  the  mortgage. 

Contract  to  recover  damages  for  breach  of  the  following  agree- 
ment signed  and  sealed  by  the  plaintiff  and  the  defendant :  "  This 
agreement,  dated  the  ninth  day  of  December,  1869,  by  and  between 
William  Somers  and  Robert  Wright,  both  of  Boston,  in  the  connty 
of  Suffolk  and  Commonwealth  of  Massachusetts,  witnesseth,  that 
whereas  said  Wright  has  this  day  conveyed  to  said  Somers,  by  deed 
of  warranty,  a  certain  lot  of  land  on  Windsor  street,  in  said  Boston, 
subject  to  a  mortgage  to  secure  the  sum  of  five  thousand  dollars, 
which  mortgage  was,  according  to  previous  agreement,  to  have  been 
discharged  prior  to  said  conveyance  as  aforesaid  :  Now,  therefore, 
said  Wright,  in  consideration  of  one  dollar  and  divers  other  consid- 
erations to  him  paid  by  said  Somers,  covenants  and  agrees  with  said 
Somers  that  he  will  discharge  said  mortgage  of  $5,000  before  the 
first  day  of  April,  1870,  and  will  save  harmless  therefrom  said  Som- 
ers and  his  heirs ;  and  it  is  mutually  agreed  and  understood  between 
the  said  parties  hereto,  that  said  Somers  shall  not  pay  the  lumber 
agreed  upon  as  the  price  and  consideration  of  said  conveyance  of 
real  estate  above  the  sum  of  $5,000,  computed  at  the  current  retail 
price  of  the  different  kinds  of  lumber  delivered,  until  said  mortgage 
of  $5,000  is  discharged,  and  the  property  is  entirely  free  from  any 
incumbrance  ;  but  said  Somers  agrees  to  deliver  lumber  according  to 
the  order  of  said  Wright,  to  the  limit  above  mentioned." 

The  declaration,  after  setting  forth  the  above  contract,  averred 
that  the  conveyance  was  in  pursuance  of  a  previous  agreement  in 
writing  between  the  plaintiff  and  the  defendant,  whereby  the  plaintiff 
was  to  purchase  and  the  defendant  to  sell  said  lot  of  land  for  $5,600, 
to  be  paid  by  the  plaintiff  in  lumber  at  current  retail  prices ;  that 


92  REAL   ESTATE. 

there  was  a  mortgage  of  $5,000  on  the  estate,  which  the  defendant 
did  not  discharge  upon  April  1,  1870,  according  to  the  agreement, 
nor  at  any  time  thereafter,  and  that  the  plaintiff  was  obliged  to  pay 
the  amount  when  due,  together  with  one  year's  interest  thereon,  in 
order  to  save  his  estate  from  foreclosure.  The  declaration  also 
averred  readiness  on  the  part  of  the  plaintiff  to  deliver  lumber  to 
the  amount  of  $5,000,  at  current  retail  prices ;  that  the  plaintiff  was 
compelled  to  pay  the  mortgage  and  interest  in  cash,  whereby  he  was 
deprived  of  the  profit  upon  the  sale  of  $5,000  worth  of  lumber  at 
current  retail  prices. 

At  the  trial  in  the  Superior  Court,  before  Putnam,  J.,  the  jury 
returned  a  verdict  for  the  plaintiff,  and  the  defendant  alleged  excep- 
tions in  substance  as  follows  : 

It  appeared  in  evidence  that  on  or  about  December  9,  1869,  the 
plaintiff  and  the  defendant  executed  the  agreement  set  forth  in  the 
declaration  ;  that  there  had  been  a  previous  agreement  between  them 
under  seal  with  reference  to  the  same  subject-matter,  dated  Novem- 
ber 1, 1869,  by  which  the  defendant  agreed  to  convey  and  the  plaintiff 
to  purchase  the  estate  mentioned  in  the  second  agreement,  for  the 
sum  of  $10,600  in  lumber,  at  current  retail  prices ;  that  the  defend- 
ant executed  to  the  plaintiff  a  warranty  deed,  and  gave  him  posses- 
sion of  the  house  and  land  mentioned  in  said  agreement,  subject  to 
a  mortgage  of  five  thousand  dollars,  as  set  forth  in  the  declaration 
and  agreement ;  that  on  or  about  the  same  time,  and  as  a  part  of  the 
same  transaction,  William  Somers  &  Company,  a  firm  composed  of 
the  plaintiff  and  others,  executed  and  delivered  to  Luther  Farwell  a 
due  bill  or  note  for  $5,600,  payable  in  lumber ;  that  Farwell,  prior 
to  and  up  to  the  time  of  the  execution  of  said  agreement  and  the 
delivery  of  said  deed,  held  a  second  mortgage  upon  said  house  and 
land,  and  that  this  due  bill  was  given  to  Farwell  as  a  consideration 
for  the  discharge  of  said  mortgage,  which  was  due  at  this  time ;  that 
this  was  done  at  the  request  of  the  defendant,  and  that  the  due  bill 
was  a  part  of  the  consideration  of  the  deed  from  the  defendant  to 
the  plaintiff ;  that  William  Somers  &  Company  were  the  parties 
beneficially  interested  in  said  agreement,  and  that  William  Somers 
held  the  premises  conveyed  in  said  deed  for  the  benefit  of  or  in  trust 
for  William  Somers  &  Company ;  that  the  defendant  did  not  pay 
said  mortgage  nor  the  interest  accruing  thereon,  but  that  the  plaintiff 
or  William  Somers  &  Company  paid  the  interest  on  the  same  at  7£ 
per  cent,  from  September  2,  1869,  to  August  20,  1870,  amounting 
to  $362  50,  and  then  paid  the  principal.  The  presiding  judge  ruled 
that  the  plaintiff  could  recover  for  the  loss  of  profits  as  claimed  in 
his  declaration,  and  the  defendant  excepted. 


SOMERS  v.  WRIGHT.  93 

The  defendant  then  called  Joseph  Goodnow,  who  testified  that 
there  was  the  least  profit  upon  spruce  lumber,  and  put  to  him  this 
question :  "  Take  it  in  the  winter  of  1869  and  '70,  between  Decem- 
ber 1  and  April  1,  what  would  be  the  fair  net  profits  on  spruce  lum- 
ber %  "  This  question  was  objected  to  by.,  the  plaintiff's  counsel,  and 
excluded  by  the  court,  on  the  ground  that  the  net  profits  of  any 
particular  dealer  or  dealers  was  not  evidence  tending  to  show  what 
the  loss  of  profits  by  the  plaintiff  was.  The  defendant's  counsel 
then  stated  that  he  proposed  to  show  by  men  dealing  in  lumber, 
having  wharves  and  of  long  experience  in  the  business,  what  the 
net  profits  on  certain  kinds  of  lumber  were.  The  court  excluded 
this  offer,  and  the  defendant  excepted.  The  court  ruled,  however, 
that  as  the  defendant  would  have  the  privilege  of  selecting  the  lum- 
ber which  yielded  the  least  profit,  the  evidence  might  be  confined  to 
spruce  lumber,  and  that  the  defendant  might  show  by  these  wit- 
nesses what  the  difference  between  the  wholesale  and  retail  price  of 
spruce  lumber  was  at  the  time,  and  the  defendant  accordingly  ex- 
amined Goodnow  and  the  other  witnesses  upon  this  point,  and  the 
court  ruled  that  the  measure  of  damages  would  be  the  difference 
between  the  wholesale  and  retail  price  of  spruce  lumber,  what  the 
plaintiff  could  obtain  for  that  amount  of  lumber  at  wholesale  and 
what  was  a  fair  retail  price  for  it,  to  which  ruling  the  defendant 
excepted. 

The  defendant  was  examined,  and  testified  that  the  deed  from 
him  to  the  plaintiff,  the  contract  declared  upon,  and  the  due  bill  for 
$5,600,  were  all  delivered  at  the  same  time,  and  on  or  about  Decem- 
ber 15,  1870,  when  the  deed  was  recorded,  and  that  Luther  Farwell 
took  the  due  bill  in  his  name,  as  collateral  for  Wright's  indebtedness 
to  him,  and  that  at  various  times  afterwards  Somers  &  Co.  delivered 
to  Farwell,  to  be  used  on  houses  Wright  was  building,  and  to  various 
other  parties,  lumber  to  the  amount  of  about  $4,000. 

He  further  testified  that  on  February  23,  1871,  he  took  the  fol- 
lowing order,  signed  by  the  defendant,  to  Somers  &  Co.,  and  then 
indorsed  it,  leaving  it  with  them  and  taking  a  receipt  for  it :  "  Bos- 
ton, Feb.  22,  1870, — Messrs.  Win.  Somers  &  Co.  Dear  Sirs, — Please 
send  me  such  lumber  as  may  be  selected  by  Mr.  Emerson,  or  ordered 
by  Mr.  Kobert  Wright,  to  be  sent  to  my  houses  on  Ball  street,  on 
Shawmut  avenue  (and  nowhere  else),  to  an  amount  not  exceeding  one 
thousand  dollars,  to  apply  on  your  due  bill  of  December  10,  1869,  to 
the  amount  of  $5,600,  payable  to  me  in  lumber.  Luther  Farwell ;  " 
that  the  Mr.  Emerson  named  in  said  order  was  furnishing  labor  for 
Wright  on  the  Ball  street  houses,  the  title  to  the  land  standing  in 


94  REAL   ESTATE. 

Farwell's  name,  as  collateral  for  advances  made  by  him  to  Wright, 
and  he  offered  to  show  that  immediately  after  the  delivery  of  said  or- 
der to  Somers  &  Co.,  and  at  various  times  thereafter,  before  April 
1,  1871,  he  demanded  of  said  Somers  &  Co.  lumber  for  said  Ball 
street  houses  and  elsewhere,  which  they  refused  to  deliver,  with  the 
exception  of  about  two  hundred  dollars'  worth,  which  was  delivered 
at  the  Ball  street  houses,  and  about  two  hundred  and  eighty  dollars' 
worth  delivered  at  East  Boston  immediately  after  the  order  was  de- 
livered. The  plaintiffs  counsel  objected  to  this  evidence,  and  any 
evidence  tending  to  show  that  all  the  lumber  had  not  been  delivered 
under  the  $5,600  order  payable  in  lumber,  and  that  if  any  default  on 
their  part  in  this  respect  existed  they  were  answerable  to  Farwell 
therefor,  and  not  to  the  defendant.  The  defendant  contended  that 
there  was  nothing  to  show  that  it  was  given  in  satisfaction  thereof, 
and  that  it  was  a  question  for  the  jury  whether  said  paper  was  given 
to  Farwell  in  satisfaction  of  the  plaintiffs  obligation  under  said  con- 
tract, upon  the  whole  evidence  and  under  proper  instructions  from 
the  court.  The  defendant  was  asked  by  the  court :  "  I  understand 
you  to  say  that  this  order  for  $5,600  was  given  at  the  same  time  the 
deed  was  delivered,  and  at  the  same  time  the  agreement  in  the  suit 
was  delivered  ? "  The  defendant  answered,  "  Yes,  sir ;  Mr.  Farwell 
was  to  hold  that  for  my  benefit  % "  The  court  then  ruled  that  the 
question  whether  all  the  lumber  under  the  due  bill  to  Farwell  had 
been  delivered  was  immaterial  in  this  suit,  and  that  a  refusal  on  the 
part  of  the  plaintiff  to  deliver  lumber  on  the  request  of  Wright 
thereafter  would  not  be  such  a  breach  of  his  obligation  as  the  de- 
fendant could  avail  himself  of  in  defense  of  this  suit,  the  defendant 
excepting. 

The  case  was  submitted  to  the  jury  to  find  the  amount  of  dam- 
age occasioned  by  the  loss  of  profits  on  the  amount  of  $5,000  worth 
of  lumber,  the  court  instructing  the  jury  on  this  branch  of  the  case 
as  explanatory  of  the  rule  of  damages  which  it  had  before  laid  down, 
as  follows,  to  which  no  additional  exception  was  taken,  except  as  to 
the  ruling  in  relation  to  interest. 

"  The  next  question  is,  what  is  the  plaintiff  entitled  to  recover  ? 
If  this  were  a  cash  transaction,  he  would  be  entitled  to  recover  the 
$5,000  and  interest.  But  it  was  not  a  cash  transaction.  It  was  to 
be  paid  in  lumber,  and  he  was  to  keep  back  this  $5,000  worth  of 
lumber  until  the  mortgage  was  paid  off.  So  that,  the  mortgage  not 
having  been  paid  off,  he  has  got  his  $5,000  in  lumber.  Therefore  he 
cannot  recover  the  $5,000  in  cash  ;  he  can  only  recover  the  loss  of 
profits,  from  the  fact  that  the  lumber  was  to  be  put  in  to  the  defend- 


SOMERS   v.  WRIGHT.  95 

ant  at  a  fair  retail  price.  So  that  his  loss  upon  the  transaction  has 
been  simply  the  difference  between  what  that  lumber  cost  him  at 
wholesale,  and  what  was  a  fair  retail  price  for  it ;  whatever  that  dif- 
ference may  have  been,  that  he  is  entitled  to  recover,  in  addition  to 
the  $362  50  and  interest. 

"  There  have  been  several  witnesses  brought,  on  the  one  side  and 
the  other — all  the  witnesses  agree,  substantially,  who  say  that  a  fair 
retail  price  would  have  been  from  twenty-two  to  twenty-four  dollars 
a  thousand.  I  believe  there  is  no  dispute,  substantially,  between 
the  witnesses  on  that  point.  Therefore  it  may  be  fair  to  take 
twenty-three  dollars  a  thousand  as  the  retail  price — dividing  the  dif- 
ference between  twenty-two  dollars  and  twenty-four  dollars,  which, 
upon  the  whole  evidence,  coming  from  the  defendant's  own  witnesses 
as  well  as  the  plaintiff's,  was  a  fair  retail  price  for  the  lumber  at 
the  time.  The  only  question,  then,  is,  what  that  lumber  cost  Som- 
ers  &  Co.,  and  the  difference  between  that  cost  and  what  he  had 
promised  to  sell  it  for  would  be  his  loss.  And  that  depends  upon 
what  was  the  market  value,  at  wholesale,  of  spruce  lumber  at  that 
time,  because  all  parties  agree  that  it  shall  rest  upon  the  basis  of 
spruce  lumber,  that  being,  I  believe,  the  lowest  priced  lumber  in  the 
market.  Therefore  you  will  take  the  evidence  upon  that  point,  and 
the  difference  between  the  wholesale  and  retail  price  of  course  will 
be  the  loss.  Whatever  you  find  the  loss  to  be,  the  plaintiff  is  en- 
titled to  interest  on  that  sum,  from  the  date  of  the  writ.  Take, 
then,  the  interest  paid,  three  hundred  and  sixty-two  dollars,  with  in- 
terest upon  that  sum  from  the  date  of  the  writ ;  take  the  loss  of 
profit,  whatever  you  may  find  it  to  be,  with  interest  upon  that  sum 
from  the  date  of  the  writ,  October  7,  1871,  add  the  two  sums  to- 
gether, and  your  verdict  will  be  for  the  plaintiff,  for  the  gross 
amount." 

The  jury  found  for  the  plaintiff,  that  the  loss  of  profits  was 
$823  62,  and  that  the  damage  suffered  by  him  on  account  of  interest 
paid  by  him,  was  $398  09,  and  the  defendant  excepted. 

Colt,  J. — By  the  terms  of  the  purchase,  the  plaintiff  had  the 
right  to  pay  in  lumber  "  at  current  retail  prices "  for  the  estate 
which  the  defendant  conveyed  to  him.  There  was  no  time  named 
for  the  delivery  of  the  lumber,  and  the  consideration  for  the  deed 
was  due  when  the  conveyance  was  made.  The  property  was  sub- 
ject to  a  mortgage  for  $5,000,  which  the  defendant  agreed  to  dis- 
charge before  the  first  of  April  following,  giving  the  plaintiff  the 
right  to  withhold  lumber  to  the  amount  of  the  incumbrance  until 
it  was  removed,  and  the  plaintiff  at  the  same  time  giving  to  one 


96  REAL   ESTATE. 

Farwell  a  due  bill  of  the  firm  of  which  he  was  a  member,  payable 
in  lumber  on  demand,  for  the  balance  of  the  consideration.  The  de- 
fendant did  not  obtain  a  discharge  of  the  mortgage  as  agreed,  and 
the  plaintiff  paid  the  same  when  due,  with  one  year's  interest  to 
August  20,  in  order  to  save  his  estate  from  foreclosure. 

This  action  is  to  recover  the  profits  which  would  have  accrued  to 
the  plaintiff  by  the  delivery  of  $5,000  worth  of  lumber  at  retail 
prices  instead  of  cash,  with  the  interest  paid  on  that  sum. 

It  was  contended  that  the  plaintiff  could  not  under  this  agree- 
ment and  declaration  recover  for  loss  of  profits.  But  the  agree- 
ment, as  applied  to  the  subject-matter,  and  the  relations  of  the  par- 
ties under  another  contract  expressly  referred  to,  clearly  shows  that 
the  loss  of  profits  claimed  is  the  loss  which  must  necessarily  and 
directly  arise  from  its  breach,  and  which  must  have  been  contem- 
plated by  the  parties  when  the  contract  was  made.  Profits  of  this 
description  may  be  recovered,  although  as  a  general  rule  the  profits 
of  a  future  transaction  are  regarded  as  an  element  too  remote  to  be 
taken  into  account  in  the  estimate  of  damages  (Fox  v.  Harding,  7 
Cush.  516  ;  Masterton  v.  Brooklyn,  7  Hill,  61). 

The  defendant  then  offered  to  show  the  net  profits  realized  by 
one  of  his  witnesses  who  was  a  lumber  dealer,  on  sales  of  lumber 
made  by  him  during  the  time  in  question.  This  was  excluded  as 
being  too  remote  in  its  tendency  to  show  the  plaintiff's  actual  loss  of 
profits,  and  no  exception  properly  lies  to  its  exclusion.  The  profits 
of  any  one  particular  dealer  would  not  be  a  fair  criterion  of  the 
plaintiff's  loss. 

The  ruling  that  the  measure  of  damages  would  be  the  difference 
between  the  wholesale  and  retail  price  of  lumber,  or  the  difference 
between  what  the  plaintiff  could  obtain  for  it  at  wholesale  and  at 
retail,  as  afterwards  explained  in  the  judge's  charge,  must  be  con- 
strued to  have  required  the  jury  to  find  what  the  plaintiff  lost  by 
being  deprived  of  an  opportunity  to  sell  at  retail  prices.  This  de- 
pended on  the  market  value  of  such  lumber  at  wholesale.  The  in- 
structions taken  together  do  not  necessarily  imply,  as  the  defendant 
contends,  that  the  jury  must  find  the  difference  between  what  the 
plaintiff  paid  for  lumber  when  he  bought  at  wholesale  and  what  he 
sold  for  at  retail,  but  rather  that  they  must  find  the  difference  on 

sales  made  at  wholesale  and  at  retail. 

*  *  -*  *  *  *  * 

But  the  ruling  of  the  court  as  to  the  recovery  of  interest  which 
accrued  on  the  mortgage  after  the  first  of  April  is  erroneous.  The 
plaintiff  took  immediate  possession  of  the  property  upon  the  deliv- 


HODGES   v.  THAYER.  97 

ery  of  the  deed.  The  whole  consideration  was  then  due,  except  so 
far  as  it  was  postponed  by  the  agreement  in  regard  to  the  mortgage. 
That  agreement  was  broken  on  the  first  of  April,  and  the  plaintiff's 
rights  were  fixed.  The  payment  of  the  mortgage  in  cash  was  one 
mode  of  paying  the  balance  of  the  consideration  then  due.  But  the 
plaintiff  would  have  no  claim  on  the  defendant  for  interest  which 
accrued  after  that  date.  He  is  indemnified  if  he  recovers  his  loss  of 
profits  and  the  interest  on  the  mortgage  to  April  first, — that  amount 
of  interest  being  so  much  in  excess  of  the  consideration  agreed  on 
for  the  deed.  To  this  extent  the  defendant's  exceptions  are  sustained, 
unless  the  plaintiff  chooses  to  remit  the  excess  and  take  judgment 
for  the  reduced  amount. 
Ordered  accordingly. 


Breach  of  Covenant  of  Seizin  and  Right  to  Convey  "Where  the 
Consideration  is  Something  other  than  Money. 


[1872.]  Hodges  v.  Thayer  (110  Mass.  286). 

At  the  trial  of  an  action  for  breach  of  the  covenants  of  seizin  and  right  to  convey,  in  a 
deed  which  stated  its  consideration  as  a  certain  sum  of  money,  it  appeared  that  in 
fact,  by  an  arrangement  between  the  parties  to  the  deed,  the  consideration  was  the 
conveyance  to  a  third  person  of  real  estate  belonging  to  the  grantee,  and  of  personal 
property  belonging  to  the  grantee's  husband,  who  acted  as  her  agent  in  the  transac- 
tion. Held,  that  the  measure  of  damages  was  the  value  of  this  real  and  personal 
property. 

Contract,  by  the  executor  of  the  will  of  Milla  Aldrich,  to  recover 
for  the  breach  of  the  covenants  of  seizin  and  right  to  convey  in  a 
deed  from  the  defendant  to  the  plaintiff's  testatrix  of  land  in  Minne- 
sota. The  deed  stated  its  consideration  to  be  $1,000  paid  by  the 
plaintiff's  testatrix. 

The  plaintiff  gave  evidence  tending  to  prove  the  defendant's 
breach  of  the  covenants  of  seizin  and  right  to  convey. 

It  was  proved  by  evidence  not  controverted  that,  by  an  arrange- 
ment made  between  the  plaintiff's  testatrix,  and  the  defendant,  the 
consideration  given  for  the  deed  to  her  was  the  conveyance  to  El- 
bridge  G.  Cook  of  the  right  to  redeem  certain  real  estate  in  the 
county  of  Worcester,  belonging  to  the  testatrix,  and  the  conveyance 
7 


98  REAL  ESTATE. 

to  Cook  of  certain  personal  property  belonging  to  Paul  Aldrich,  who 
was  the  husband  of  the  testatrix  and  her  agent  in  the  transaction. 
The  plaintiff,  for  the  purpose  of  proving  the  amount  of  damages 
which  he  was  entitled  to  recover  for  the  breach  of  the  covenants  of 
seizin  and  right  to  convey,  offered  evidence  of  the  value  of  said  per- 
sonal property,  to  which  the  defendant  objected ;  but  the  judge  ad- 
mitted it,  and  ruled  that  if  the  jury  were  satisfied  that  the  covenants 
of  seizin  and  right  to  convey  were  broken  by  the  defendant,  the 
plaintiff  would  be  entitled  to  recover  the  value  of  the  property  con- 
veyed to  Cook,  including  the  value  of  the  personal  property. 

The  jury  returned  a  verdict  for  the  plaintiff,  and  the  defendant 
alleged  exceptions. 

"Wells,  J.  (after  disposing  of  a  question  of  construction  of  a 
deed). — The  only  other  question  relates  to  the  proper  measure  of 
damages  for  breach  of  the  covenant  of  seizin  and  right  to  convey. 
The  general  rule  is  well  settled  that  the  measure  of  damages  for 
breach  of  this  covenant  is  the  consideration  paid,  or  price  agreed 
upon  for  the  conveyance.  The  actual  consideration  may  be  proved 
for  this  purpose  by  parol  evidence,  even  in  contradiction  to  the  re- 
cital thereof  in  the  deed  itself.  It  does  not  modify  the  rule,  if  the 
actual  consideration  was  paid  in  other  commodities  than  money,  or 
even  in  other  real  estate.  It  only  requires  that  the  value  of  such 
other  property  be  ascertained.  Nor  does  it  matter  that  the  consid- 
eration is  in  fact  paid  or  delivered  to  another  person  than  the 
grantor  ;  or  that  it  is  itself,  before  delivery,  the  property  of  another 
than  the  grantee  ;  provided  it  is  agreed  upon  between  the  grantor 
and  the  grantee  as  the  consideration  upon  which  the  deed  is  given. 
Their  contract  creates  the  privity  between  them  in  relation  to  the 
consideration,  and  constitutes  it  as  the  price  of  the  agreed  convey- 
ance. It  thereby  becomes  the  measure  of  the  grantee's  loss.  In  the 
case  of  Byrnes  v.  Rich  (5  Gray,  518),  there  was  no  consideration  or 
price  agreed  on  between  the  grantor  and  grantee.  So  far  as  that  was 
concerned,  each  had  a  separate  arrangement  with  a  third  party.  The 
deed  passed  as  the  result  of  two  different  agreements,  and  was  made 
directly  from  the  grantor  to  the  grantee  as  a  matter  of  convenience, 
and  not  in  execution  of  an  agreement  between  them.  Each  was  a 
stranger  to  the  consideration  by  which  the  other  was  affected.  There 
being  no  price  agreed  upon  as  between  them,  the  value  of  the  land 
attempted  to  be  conveyed  was  resorted  to  as  the  proper  measure  in 
the  absence  of  any  other. 

A  like  exception  is  made  in  Smith  v.  Strong  (14  Pick.  128), 
where  the  actual  consideration  was  incapable  of  proof. 


BRACKET   v.  M'NAIR.  99 

In  the  present  case  there  is  no  reason  for  departing  from  the  gen- 
eral rule,  because  the  bill  of  exceptions  finds  that  the  consideration 
was  settled  by  an  arrangement  between  the  grantor  and  grantee.  It 
was  only  necessary,  therefore,  to  determine  its  amount  by  ascertain- 
ing the  value  of  the  property  in  which  it  was  rendered  or  procured 
to  be  rendered. 

Exceptions  overruled. 


CARRIERS. 

Damages  for  Breach  of  Contract. 


[1817.]  Bracket  v.  M'Nair  (14  Johns.  170). 

Id  an  action  for  the  breach  of  a  contract  to  transport  goods  from  A.  to  B.,  the  difference 
between  the  value  of  the  goods  at  A.,  and  their  increased  value  at  B.,  is  a  proper 
measure  of  damages  (vide  Amory  v.  M'Gregor,  15  Johns.  Rep.  24;  Smith  v.  Rich- 
ardson, 3  Caines'  Rep.  219  ;  Watkinson  v.  Laughton,  8  Jolms.  Rep.  213 ;  Aymar  v. 
Astor,  6  Cowen,  266). 

This  was  an  action  of  assumpsit,  which  was  tried  before  Mr.  Jus- 
tice Yates,  at  the  Onondaga  circuit,  in  June,  1816. 

At  the  trial,  a  written  agreement  between  the  parties,  made  on 
the  19th  August,  1809,  was  produced  in  evidence,  by  which  the  de- 
fendant agreed  to  forward  for  the  plaintiff  four  hundred  barrels  of 
salt,  the  property  of  the  plaintiff,  then  being  in  store  with  the  de- 
fendant, marked  J.  Bracket,  to  Queenston,  for  one  dollar  per  barrel 
for  boating,  storage  and  freight  of  the  same,  from  Oswego  Falls  to 
Queenston ;  that  the  defendant  was  to  receive  the  money  for  the 
freight  on  or  before  the  1st  day  of  February  thereafter,  and  that  he 
would  ship  half  of  his  salt  the  first  trip  his  vessel  should  make,  and 
the  remainder  the  second  trip,  or  sooner  if  possible.  It  was  proved, 
that  between  the  time  of  making  the  contract,  and  the  time  when 
the  collector  of  Oswego  had  received  information  of  the  non-inter- 
course act  of  the  United  States,  which  was  on  the  evening  of  the 
30th  of  August,  the  defendant's  vessels  had  sailed  for  Niagara,  or 
Little  York,  without  taking  any  part  of  the  plaintiff's  salt.  The 
plaintiff  also  proved  what  was  then  the  price  of  salt  at  Oswego  and 
at  Queenston. 

The  defendant  proved,  by  one  Richmond,  that  the  plaintiff  had 


100  CARRIERS. 

said,  that  he  forwarded  his  salt  to  Thomas  Clark,  of  Queenston,  in 
the  year  1809,  and  by  Hugarin,  another  witness,  that  the  witness  in 
1809,  carried  two  hundred  bushels  of  the  plaintiff's  salt,  by  his  direc- 
tion, to  Porter,  Barton  &  Co.,  of  Lewiston,  and  received  his  pay 
therefor  from  the  plaintiff.  The  defendant  then  offered  in  evidence 
sundry  receipts,  signed  by  James  L.  Barton,  for  Porter,  Barton  & 
Co.,  and  several  receipts,  signed  by  James  Kirby,  for  Thomas  Clark, 
for  salt,  marked  J.  B.  and  J.  Bracket,  and  offered  to  prove  the  hand- 
writing of  the  persons  who  subscribed  them.  This  testimony  was 
objected  to  by  the  plaintiff's  counsel  as  improper,  without  the  pro- 
duction of  the  agents  themselves  as  witnesses ;  and  the  judge  re- 
jected the  evidence.  The  defendant  then  moved  for  a  nonsuit,  on 
the  ground  that  a  breach  of  the  contract  was  not  proved ;  but  the 
judge  refused  the  nonsuit,  and  charged  the  jury  that  a  breach  of  the 
contract  was  sufficiently  proved,  and  that  the  measure  of  damages 
which  the  plaintiff  was  entitled  to  recover  was  the  difference  in  the 
value  of  400  barrels  of  salt  at  Oswego,  and  the  value  of  the  same  at 
Queenston,  on  the  first  of  September,  1809,  and  the  jury  accordingly 
found  a  verdict  for  the  plaintiff  for  eight  hundred  dollars. 

The  defendant  moved  for  a  new  trial,  and  the  case  was  submitted 
to  the  court  without  argument. 

Per  curiam. — The  testimony  in  the  case  shows  that  several  ves- 
sels, under  the  charge  of  the  defendant,  sailed  from  Oswego  after 
the  contract  was  entered  into  with  the  plaintiff,  and  before  any  infor- 
mation was  received  at  that  place  of  the  non-intercourse  law  between 
the  United  States  and  Great  Britain ;  and  no  reason  whatever  is 
assigned  why  the  plaintiff's  salt  was  not  transported.  The  evidence 
does  not  show,  in  any  manner,  a  performance  of  a  contract  by  the 
defendant,  or  any  excuse  for  the  non-performance.  The  case  is  very 
imperfectly  drawn,  or  must  have  been  very  obscurely  explained  upon 
the  trial.  Whether  the  testimony  of  Richmond  and  of  Hugarin,  as 
to  the  transportation  and  delivery  of  salt  of  the  plaintiff's  to  Thomas 
Clark,  of  Queenston,  and  to  Porter,  Barton  &  Co.,  of  Lewiston,  has 
any  relation  to  the  four  hundred  barrels  mentioned  in  the  special 
agreement,  is  entirely  unexplained.  The  defendant,  according  to 
the  facts  stated  in  the  case,  has  failed  to  perform  his  contract  in  the 
transportation  of  the  salt ;  and  if  so,  the  rule  of  damages  adopted  by 
the  judge  was  no  more  than  giving  to  the  plaintiff  an  indemnity  for 
the  injury  sustained  by  the  breach  of  contract  by  the  defendant. 
He  has  recovered  no  more  than  the  difference  between  the  value  of 
his  salt  at  Oswego,  from  whence  it  was  to  be  taken,  and  at  Queens- 
ton, the  place  to  which  it  was  to  be  carried.     Whether  the  evidence 


BOWMAN  v.   TEALL.  101 

of  the  handwriting  to  the  receipts  offered  in  evidence  was  properly 
rejected,  is  unimportant :  these  receipts  do  not  appear  to  have  any 
connection  with  this  transaction,  from  anything  disclosed  in  this  case. 
The  motion  for  a  new  trial  must  accordingly  be  denied. 
Motion  denied. 

The  rule  adopted  in  the  foregoing  case  is  now  settled  and  familiar  (see 
O'Connor  v.  Foster,  10  Watts,  418  [1840]^.  A  reasonable  time  for  delivery 
should  be  allowed  the  carrier,  and  the  damages  should  be  computed  from  the 
expiration  of  such  time  (Sherman  et  al.  v.  Hudson  River  Railroad  Co.  64  N.  Y. 
254  [1876]). 


Carrier  ;  Acceptance  of  Goods  by  Owner  ;   Mitigation. 


[1840.]  Bowman  v.  Teall  (23  Wend.  30G). 

Where  common  carriers  have  been  guilty  of  negligence,  whereby  the  owner  of  goods  has 
sustained  injury,  the  subsequent  acceptance  of  the  goods  by  the  owner  is  no  bar  to 
an  action,  but  may  be  given  in  evidence  in  mitigation  of  damages. 

This  was  an  action  on  the  case,  tried  at  the  Albany  Circuit  in 
April,  1839,  before  the  Hon.  John  P.  Cushman,  one  of  the  circuit 
judges. 

It  was  brought  against  the  defendants  for  negligence  as  common 
carriers,  in  the  transportation  of  1,000  bushels  of  salt,  which  they 
had  undertaken  to  carry  from  New  York  to  Albany.  The  salt  was 
received  by  the  defendants  at  New  York,  on  the  first  or  second  day 
of  December,  1836,  on  board  of  a  lake  boat,  which  left  New  York 
on  the  third  day  of  December,  and  was  towed  by  a  steamboat  as  far 
north  as  Red  Hook,  when  she  was  cast  off  by  the  steamboat  in  con- 
sequence of  the  obstruction  of  ice  in  the  river.  The  lake  boat  was, 
however,  worked  up  as  far  as  Catskill,  and  there  left  by  the  master 
in  charge  of  a  person  employed  by  him.  On  Friday,  the  twenty- 
eighth  day  of  December,  the  plaintiff  and  one  of  the  defendants 
were  at  Catskill,  and  saw  the  salt.  The  plaintiff,  on  that  occasion, 
told  one  Bowman,  a  resident  of  Catskill,  that  he  and  Teall  were 
going  to  Hudson  to  sell  the  salt,  and  if  he  did  not  hear  from  him 
before  the  following  Monday,  to  take  the  salt  out  of  the  boat  and 
store  it.  The  boat  sprung  a  leak  on  Saturday  night,  when  Bowman 
took  out  the  salt  and  stored  it.     Subsequently  he  removed  it  to 


102  CARRIERS. 

another  place,  where,  during  the  winter,  it  was  overflowed  by  a. 
freshet,  and  the  principal  part  of  it  melted.  The  contract  to  trans- 
port the  salt  was  made  in  New  York  about  the  20th  of  November, 
1836.  There  was  evidence  tending  to  show  negligence  in  starting 
the  salt  from  New  York,  and  afterwards  in  not  getting  up  the  boat 
from  Catskill.  A  steamboat  towing  four  boats  left  New  York  on 
the  tenth  of  December,  and  arrived  in  Albany  on  the  third  day 
thereafter,  with  her  boats  in  tow.  On  the  other  hand,  there  was 
evidence  tending  to  rebut  the  proof  of  negligence.  The  counsel 
for  the  defendants  requested  the  judge  to  charge  the  jury  :  1.  That 
if  they  believed  that  the  plaintiff  received  the  salt,  or  exercised  any 
dominion  or  direction  over  it  at  Catskill,  that  he  was  not  entitled  to 
recover  ;  and  2.  that  if  they  believed  from  the  testimony  of  Barlow, 
that  the  plaintiff  was  the  person  who  told  him  to  store  the  salt,  if  he 
did  not  hear  from  him  on  or  before  Monday,  that  the  defendants 
were  not  liable.  The  judge  refused  so  to  charge,  and  for  such  re- 
fusal the  defendants  excepted.  The  jury  found  for  the  plaintiff. 
The  defendants,  on  a  bill  of  exceptions,  moved  for  a  new  trial. 

By  the  court,  Cowen,  J. — The  only  two  points  which  can 
be  raised  relate  to  the  successive  requests  to  charge  :  1.  That, 
if  the  jury  believed  the  plaintiff  received  the  salt  or  exercised 
any  dominion  over  it,  or  gave  any  direction  at  Catskill  concern- 
ing it,  this  defeated  the  action ;  and  2.  that,  if  they  believed 
Bowman  told  Barlow  to  store  the  salt,  as  testified  by  him,  that 
would  have  the  effect  to  defeat  the  plaintiff.  Both  requests  were 
founded  on  principles  which  are  entirely  false.  The  acceptance 
of  the  salt  at  Catskill,  taken  in  the  abstract,  would  not,  as  I  have- 
already  intimated,  discharge  the  defendants.  To  have  that  effect, 
it  must  have  been  accepted,  or  in  other  words,  taken  out  of  the 
defendants'  custody  by  the  plaintiff,  in  the  fall  or  winter,  and  be- 
fore any  cause  of  action  had  arisen  by  reason  of  any  negligence 
which  may  be  supposed  imputed  to  the  defendants  by  the  verdict. 
The  request  for  instructions  should  therefore  have  been  thus  re- 
stricted. Nothing  is  better  settled  than  that,  after  an  injury  has 
been  committed,  the  cause  of  action  cannot  be  discharged  by  any  act 
of  the  plaintiff  short  of  a  release,  or  acceptance  of  something  in 
satisfaction.  By  receiving  the  salt  even  in  the  spring,  the  damages, 
I  admit,  would  have  been  mitigated  to  the  extent  of  its  then  value, 
which  at  best  could  not  have  been  much,  after  its  having  been  sub- 
jected to  the  action  of  a  winter  freshet.  This  distinction  occurs 
every  day  in  trover  and  trespass  de  bonis  asjoortatis,  where  the 
goods  have  been  delivered  to  and  accepted  by  the  plaintiff  after  the 


BOWMAN  v.   TEALL.  103 

conversion  or  tort  has  been  committed.  Baylis  v.  Usher  (4  Moore  & 
Payne,  790  ;  s.  c.  imperfectly  reported,  7  Bing.  153),  is  still  nearer 
in  point.  That  was  trespass  on  the  case  for  a  wrongful  distress, 
where  the  property  had  never  been  removed  ;  but  the  plaintiff  had 
the  free  use  of  it,  and  it  was  finally  restored  to  him  before  suit 
brought.  Tet  the  action  was  held  to  He.  Bosanquet,  J.  (1  Moore 
&  Payne,  791,  792),  adverted  to  and  applied  the  general  principle. 
He  said,  "  A  right  of  action  once  vested  can  only  be  destroyed  by  a 
release  under  seal,  or  by  the  receipt  of  something  in  satisfaction  of 
the  wrong  done  ;  and,  therefore,  the  tenant  does  not  waive  his  right 
of  action  for  an  excessive  distress,  though  he  enter  into  a  written 
agreement  with  his  landlord  respecting  the  sale  of  the  effects 
seized."  The  latter  had  before  been  held,  in  so  many  words,  by  the 
King's  Bench  (Willoughby  v.  Backhouse,  4  Dowl.  <fc  Kyi.  539  ;  s.  c. 
2  Barn.  &  Cress.  821).  And  this  latter  case  was  but  a  repetition 
of  what  the  C.  B.  had  held  at  a  previous  term  of  the  same  year, 
A.  D.  1824  (Sells  v.  Hoare,  8  Moore,  451 ;  s.  c.  1  Bing.  401).  Yet 
in  the  last  case  the  damages  were  very  trifling,  only  one  shilling,  as 
the  jury  found.  The  principle  was  fully  considered  in  Willoughby 
v.  Backhouse.  Batley,  J.,  said  there  was  no  such  thing  as  a  man's 
waiving  his  right  of  action,  when  once  a  wrong  had  been  committed. 
And  it  may  indeed  be  asked,  who  ever  heard  of  such  a  thing  being 
held  ?  Now  it  will  be  seen  that  if  the  learned  judge  had,  in  the 
case  at  bar,  charged  as  he  was  at  first  desired  to  do,  the  jury  might 
have  been  entirely  cut  off  from  the  consideration  of  two  important 
questions  :  one,  whether  the  defendants  had  been  guilty  of  negli- 
gence in  not  transporting  the  salt  to  Albany  ;  and  the  other,  as  to 
negligence  in  the  manner  of  their  causing  it  to  be  stored  for  the 
winter,  if  Barlow  be  taken  as  having  acted  for  them.  The  freezing 
of  our  canals  or  rivers  has  indeed  been  held  such  an  intervention  of 
the  vis  major,  as  excuses  the  delay  of  the  common  carrier  by  water. 
But  still  he  is  bound  to  exercise  at  least  ordinary  forecast  in  antici- 
pating the  obstruction  ;  to  exert  the  proper  means  for  overcoming 
it ;  and  to  exercise  due  diligence  in  accomplishing  the  transportation 
as  soon  as  it  ceases  to  operate.  In  the  mean  time  he  must  not  be 
guilty  of  negligence  in  taking  care  of  the  article  detained.  Indeed 
these  obligations  are  not  questioned. 

But  none  of  the  matters,  in  the  form  proposed,  would  have  been 
admissible  even  in  mitigation  of  damages.  The  proposition  was, 
that  an  acceptance  or  exercise  of  any  dominion  over,  or  giving  any 
directions,  would  cut  off  all  right  of  recovery.  Now  the  exercise  of 
dominion  or  giving  directions  might  be  acts  of  a  very  equivocal 


104  CARRIERS. 

character,  as  in  truth  they  were  here,  when  viewed  in  the  light  of 
Barlow's  testimony.  The  plaintiff  might  have  been  speaking  for 
himself,  or  for  one  of  the  defendants,  the  latter  still  having  the  salt 
in  their  charge  ;  or  he  might  have  been  speaking  from  that  interest 
which  every  prudent  owner  would  feel  in  having  a  perishable  article 
well  taken  care  of,  although  it  might  be  at  the  risk  of  another.  In- 
terference, by  exercising  dominion  or  giving  directions,  might,  under 
circumstances,  be  evidence  of  an  acceptance,  but  never  an  accept- 
ance of  itself.  And  this  too  is  an  answer  to  the  second  call  for 
instructions,  which  indeed  is  very  nearly  identical  with  the  first. 
To  have  made  either  available  in  mitigation,  it  should  have  proposed 
acceptance  for  that  purpose  alone. 
A  new  trial  must  be  denied. 


Negligent  Loss  by  Carrier:  Market  Value. 


[1842.]     Smith  v.  Griffith  and  others  (3  Hill,  333). 

The  law,  in  regulating  the  measure  of  damages  for  the  loss  of  goods  having  a  salable  or 
marketable  value,  or  injury  thereto,  contemplates  a  range  of  the  entire  market,  and 
the  average  of  prices  as  thus  found,  running  through  a  reasonable  period  of  time. 

Evidence  that  such  goods  are  in  truth  of  trifling  value,  compared  with  the  prices  at  which 
they  had  been  sold  in  the  market ;  that  they  were  of  no  real  use  for  the  purpose  to 
which  they  were  to  be  applied ;  and  that  they  were  intended  by  the  buyer  for  a 
special  purpose,  which,  as  it  has  turned  out,  would  have  resulted  in  loss,  is  improper. 
Per  Nelson,  Ch.  J. ;  Cowen,  J.,  dissenting. 

The  price  paid  for  the  particular  goods  in  controversy  is  not  conclusive,  but  is  some  evi- 
dence of  their  value,  and  may  be  taken  into  account  with  other  testimony.  Proof 
also  of  a  latent  defect  in  the  articles,  showing  them  to  be  inferior  in  value  to  sound 
ones,  such  as  were  salable  in  the  market,  would  be  proper. 

This  was  an  action  on  the  case  against  carriers,  to  recover  for 
damage  to  a  quantity  of  Alpine  mulberry  trees,  which  the  defend- 
ants as  common  carriers  had  undertaken  to  transport,  and  which, 
through  exposure  and  delay,  brought  about  by  their  negligence,  had 
been  greatly  injured.  Testimony  in  relation  to  the  value  of  the 
trees,  the  nature  of  which  will  appear  from  the  opinion  of  Mr.  Chief 
Justice  Nelson,  was  offered  and  excluded.  The  defendants'  counsel 
put  to  a  witness  examined  under  commission  the  inquiry  whether  he 
knew  what  price  the  plaintiff  had  paid  for  the  trees.     The  witness 


SMITH  v.  GRIFFITH.  105 

declined  answering,  and  the  defendants'  counsel  objected  to  the  read- 
ing of  the  deposition  on  this  ground,  but  the  objection  was  over- 
ruled, and  the  deposition  read  in  evidence. 

Nelson,  Ch.  J. — The  defendants  proposed  to  prove  that,  subse- 
quent to  the  delivery  of  the  trees  to  them  as  carriers,  and  the  hap- 
pening of  the  damage,  it  had  been  ascertained  by  dealers,  that  Alpine 
mulberry  trees  were  in  truth  of  trifling  value,  compared  with  the 
prices  at  which  they  had  been  sold  in  the  market ;  that  these  had 
been  greatly  inflated  and  disproportioned  to  the  intrinsic  value  ;  that 
the  trees  were  not  worth  cultivating  for  the  purpose  of  raising  the 
silk  worm ;  that  they  were  purchased  by  the  plaintiff  to  plant  as  a 
nursery,  from  which  to  sell  the  production ;  and  that  the  article  was 
of  no  value  the  next  year,  and  would  not  have  paid  the  expense  of 
cultivation.  All  this  evidence,  I  am  of  opinion,  was  properly  re- 
jected, as  having  no  legitimate  bearing  upon  the  question.  The 
damages  to  which  the  plaintiff  is  entitled,  if  any,  should  afford  an 
adequate  indemnity  for  the  loss  sustained  at  the  time  the  injury 
happened ;  and  the  admission  or  rejection  of  evidence  should  be 
regulated  with  a  view  to  produce  this  result  in  the  opinion  of  the 
jury.  If  goods  are  wholly  lost  or  destroyed,  the  owner  is  entitled 
to  their  full  worth  at  the  time  of  such  loss  or  destruction.  In  trover, 
the  measure  of  damages  is  the  value  of  the  goods  at  the  time  and 
place  of  conversion,  with  interest ;  or,  perhaps,  at  any  time  between 
that  and  the  trial  (Kennedy  v.  Strong,  14  Johns.  Rep.  128 ;  West  v. 
Beach,  3  Cowen,  82).  And,  upon  the  same  principle,  if  the  goods 
are  partially  injured,  and  the  party  seeks  redress  for  the  qualified 
damage,  the  measure  should  be  in  like  proportion.  Assuming  that 
there  is  no  defect  in  the  quality  of  the  article,  the  fair  test  of  its 
value,  and  consequently  of  the  loss  to  the  owner  if  it  has  been 
destroyed,  is  the  price  at  the  time  in  the  market.  This  makes  him 
whole,  because  the  fund  recovered  enables  him  to  go  into  the  market 
and  supply  himself  again  with  the  goods  of  which  he  has  been  de- 
prived. The  objection  to  the  evidence  offered  is,  that  it  proposed 
to  take  into  consideration  the  fluctuations  of  the  market  value  long 
subsequent  to  the  time  when  the  injury  happened ;  thereby  making 
the  measure  of  damages  to  depend  upon  the  accidental  fall  of  prices 
at  some  future  period,  which  might  or  might  not  occur ;  and  if  it 
did,  the  loss  might  or  might  not  have  fallen  upon  the  plaintiff,  as, 
for  aught  the  court  or  jury  could  know,  he  may  have  parted  with 
the  property  before  the  depreciation.  It  is  true  the  counsel  offered 
to  prove  that  the  plaintiff  had  purchased  the  trees  for  the  purpose 
of  planting  and  reproducing  the  article  for  the  market  the  next  year ; 


106  CARRIERS. 

but  this  mere  unexecuted  intention,  if  it  existed,  amounted  to  noth- 
ing. It  bound  nobody ;  and  the  plaintiff  had  a  right  to  change  it, 
and  to  turn  the  property  to  better  account  if,  in  his  judgment,  the 
opportunity  offered. 

No  doubt,  if  the  defendants  could  have  shown  any  latent  defect 
in  the  particular  trees,  that  became  developed  at  some  period  after 
the  injury,  by  which  they  proved  to  be  of  an  inferior  value  to  sound 
and  healthy  ones,  such  a*  were  regarded  as  salable  in  the  market, 
the  evidence  would  have  been  proper.  But  this  was  not  the  effect 
of  the  offer.  The  proposal  went  to  show  a  general  depreciation  of 
the  value  of  the  article  after  the  injury,  even  in  its  best  condition. 
This  I  am  of  opinion  was  irrelevant  and  impertinent,  and  therefore 
properly  rejected.  I  admit  that  a  mere  speculating  price  of  the 
article,  got  up  by  the  contrivance  of  a  few  interested  dealers  with  a 
view  to  control  the  market  for  their  own  private  ends,  is  not  the 
true  test.  The  law,  in  regulating  the  measure  of  damages,  contem- 
plates a  range  of  the  entire  market,  and  the  average  of  prices  as  thus 
found,  running  through  a  reasonable  period  of  time.  Neither  a  sud- 
den and  transient  inflation  or  depression  of  prices  should  control  the 
question.  These  are  often  accidental,  produced  by  interested  and 
illegitimate  combinations,  for  temporary,  special  and  selfish  objects, 
independent  of  the  influences  of  lawful  commerce — a  forced  and 
violent  perversion  of  the  laws  of  trade,  not  within  the  contempla- 
tion of  the  regular  dealer,  and  not  deserving  to  be  regarded  as  a 
proper  basis  upon  which  to  determine  the  value,  when  the  fact 
becomes  material  in  the  administration  of  justice. 

The  deposition  of  Cheeney,  I  think,  ought  to  have  been  rejected, 
as  the  answer  to  the  fifth  cross-interrogatory  was  proper  and  might 
have  been  material.  The  fifth  direct  interrogatory  had  called  for 
his  opinion  as  to  the  value  of  the  article  in  the  city  of  New  York, 
where  it  was  purchased,  to  which  he  had  responded ;  and  the  corre- 
sponding cross-interrogatory  inquired  the  price  the  plaintiff  had  paid 
for  it.  This  he  refused  to  answer,  under  the  pretext  that  the  trans- 
action was  confidential.  Now,  though  the  price  paid  by  the  plaintiff 
was  not  conclusive  upon  him,  as  he  might  have  been  fortunate 
enough  to  buy  under  the  fair  market  value,  yet  it  was  some  evi- 
dence of  that  value,  and  might  well  have  been  taken  into  the 
account,  with  the  other  testimony.  It  was  one  of  a  multitude  of 
sales  that,  in  the  aggregate,  might  go  to  determine  the  market  value 
at  the  place  where  the  purchase  was  made ;  and,  if  unexplained,  or 
made  to  depend  upon  peculiar  circumstances,  might  be  regarded  as 
very  material  evidence  of   the   fact.     In  Sandford  v.  Handy  (23 


SMITH  v.  GRIFFITH.  107 

Wend.  260)  we  were  strongly  inclined  to  the  opinion  that  a  misrep- 
resentation by  the  vendor  of  the  actual  cost  of  an  article  was  a  mate- 
rial fact,  and  competent,  under  the  circumstances,  upon  the  question 
of  fraud  in  the  sale ;  and  if  so,  the  cost  price  should  be  regarded  as 
material,  when  called  out  in  a  proper  case,  as  an  item  of  evidence  to 
determine  the  value.  If  the  witness  had  been  upon  the  stand  at  the 
time,  and  had  refused  to  answer  in  defiance  of  the  authority  of  the 
court,  his  whole  testimony  must  have  been  stricken  out  of  the  cause  ; 
and  as  the  same  objection  may  be  taken  to  the  testimony  returned 
under  the  commission  as  if  the  witness  were  examined  orally  in 
court,  it  should  have  been  rejected.  The  examination  was  imper- 
fect, one-sided,  and,  in  effect,  ex  parte  (Kissam  v.  Forest,  25  Wend. 
651,  652,  and  the  cases  there  cited). 

Bronsok,  J.,  concurred. 

Cowen,  J. — The  motion  should  be  granted  for  the  rejection  of 
proper  evidence.  This  action  was  case  against  common  carriers,  to 
recover  for  the  loss  of  two  boxes  of  Alpine  mulberry  trees.  It  was 
not  an  action  by  a  vendor  against  the  vendee  for  goods  sold  at  an 
agreed  price.  The  question,  therefore,  I  think,  stood  open  at  the 
trial  to  all  the  proof  which  would  be  admissible  on  a  Quantum  vale- 
bant. The  market  price  being  established,  the  defendant's  counsel 
offered  to  prove  that  this  depended  on  an  estimate  entirely  false, 
more  mature  observation  having  shown  that  the  article  was  in  truth 
of  no  intrinsic  value.  If  a  man  will  purchase  such  an  article  at  an 
agreed  price,  without  warranty  or  fraud,  I  readily  agree  that  he  can- 
not reduce  the  price  by  impeaching  the  article  as  useless ;  but  I  am 
not  prepared  to  admit  the  same  rule  as  between  bailor  and  bailee, 
where  no  price  is  agreed  on  in  case  of  loss.  A  carrier  is  bound  to 
receive  and  convey  all  goods  in  his  line  for  the  usual  rate  of  compen- 
sation. I  do  not  mention  this  obligation  as  a  reason  why  he  should 
not  pay  the  value  of  the  goods,  but  for  saying  that  where  they  hap- 
pen to  be  accidentally  lost,  he,  of  all  persons,  should  be  the  last  upon 
whom  courts  and  juries  ought  to  inflict  the  artificial  prices  of  the 
speculator ;  that  it  should  rather  be  confined  to  buyers  and  sellers, 
who  are  the  manufacturers  of  such  prices — a  work  which  is  entirely 
res  inter  alios  in  relation  to  the  carrier."  But  without  urging  any 
such  consideration,  let  us  consider  the  stronger  case  of  buyer  and 
seller.  Take  it  that  any  article  of  merchandise,  to  all  appearance  of 
fair  value,  is  sold  for  what  it  is  reasonably  worth ;  prima  facie,  I 
admit,  the  vendor  shall  recover  the  market  price.  It  is  shortly  after 
discovered,  however,  that  it  is  really  worth  little  or  nothing,  from 
some  secret  cause  unknown  to  the  parties,  and  believed  not  to  exist 


108  CARRIERS. 

at  the  time  of  sale.  It  seems  to  me  this  would  be  available  as  a 
defense,  and,  indeed,  that  it  would  be  so,  even  on  the  principle  con- 
ceded at  the  circuit.  I  am  unable  to  distinguish  between  an  offer  to 
show  that  the  trees  were  unfit  for  feeding  silk  worms  and  an  offer 
to  show  a  total  or  partial  worthlessness  for  any  other  cause.  It  was 
contended  at  the  bar  that  the  current  price  is  the  absolute  standard ; 
and  I  can  conceive  no  other  plausible  ground  on  which  a  party  who 
never  bound  himself  by  contract  to  pay  any  specific  price  can  be 
concluded.  It  is  plausible  to  say,  the  plaintiff  might  have  got  so 
much  for  a  plausible  article ;  that  it  was  lost,  and  his  chance  to  get 
that  price  was  lost  with  it.  This,  if  allowed,  is  an  estoppel  as  well 
against  the  right  to  show  one  defect  as  another.  It  applies  emphat- 
ically to  the  bubble  trade  of  the  country,  in  which  prices  are  gener- 
ally notorious,  and  easily  made  out  by  clouds  of  witnesses.  A  man 
takes  an  article  in  that  trade  to-day,  and  agrees  to  pay  what  it  is  rea- 
sonably worth  to-morrow.  On  subsequent  observation  and  experi- 
ence the  bubble  bursts,  for  the  reason  that  it  was  really  as  worthless 
when  purchased  as  afterwards ;  yet  it  is  contended  that  jurors  are 
absolutely  bound  to  say,  and  courts  to  adjudge,  that  such  an  article 
was  reasonably  worth  the  price  which  a  universal  mistake  had  affixed 
to  it.  Precisely  the  same  principle  would  extend  to  a  fair  looking 
horse  which  no  one  could  ride  or  drive,  or  which  was  secretly  labor- 
ing under  an  incurable  disease ;  to  mulberry  trees  unfit  to  feed  silk 
worms,  or  fair  looking  slips  for  transplanting,  which  have  lost  the 
principles  of  vegetable  life.  I  am  unable  to  perceive  why  the  dam- 
ages can  be  reduced  by  showing  an  article  worthless  for  one  purpose, 
and  yet  not  be  at  all  affected  by  proving  it  worthless  for  all  purposes. 
This  latter  I  understand  to  have  been  proposed  at  the  circuit.  Let 
us  look  at  other  examples.  A  man  assigns  his  patent  of  a  new  and 
famous  invention  for  what  it  is  reasonably  worth,  on  a  year's  credit. 
The  year  comes  round  and  it  turns  out  that  the  invention  had  been 
anticipated,  and  the  patent  is  therefore  void.  So  of  quack  medi- 
cines, which  was,  I  believe,  put  on  the  argument  as  an  illustration 
for  the  plaintiff.  So  of  a  note  against  a  man  reputed  wealthy,  who 
will  testify  that  he  was  utterly  insolvent  at  the  time.  So  also  of 
stock  in  a  corporation  whose  officers  will  swear  that  it  had  no  assets. 
In  all  these  and  like  cases,  is  it  right  to  say  that  the  measure  of  value 
shall  be  the  fancy  price  at  the  day  ?  The  case  of  a  Raphael,  sold  for 
what  it  is  reasonably  worth,  but  which  turns  out  to  be  the  picture 
of  an  inferior  artist,  was  put,  in  the  argument  for  the  plaintiff,  as  a 
crowning  illustration.  I  think  it  was  equally  unhappy  with  that  of 
the  quack  medicines.     It  seems  to  me  that  the  learned  counsel  con- 


SMITH  v.  GRIFFITH.  10& 

founded  the  price  to  be  paid  by  a  carrier  with  the  case  of  prices 
agreed  by  a  purchaser,  where  there  is  no  warranty  or  fraud.  I  do 
not  understand  that,  where  damages  are  open  to  an  estimate  on  the 
principles  of  a  quantum  valebant,  the  mere  fictitious  value  is  in- 
tended by  the  law.  And  I  can  feel  no  doubt  that  persons  who  hap- 
pen accidentally  to  injure,  destroy  or  lose  such  articles,  are  entitled 
to  the  full  benefit  of  the  principle.  In  trover  for  a  promissory  note, 
though  this  court  held  the  defendant  to  the  sum  expressed  by  it, 
they  admitted  that  the  maker's  insolvency  might  be  shown  in  miti- 
gation of  damages  (Ingalls  v.  Lord,  1  Cowen,  240).  I  understand 
the  offer,  in  the  case  before  us,  as  made  at  the  trial,  to  imply  a  secret 
defect  in  these  trees — i.  e.,  high  anticipations  were  indulged  in  the 
market  that  this  kind  of  mulberry  tree  would  be  of  great  conse- 
quence in  the  silk  manufacture  of  the  northern  States,  whereas  it 
was  a  mere  delusion  of  the  moment,  the  trees  being  really  a  useless 
incumbrance  to  the  premises  of  the  cultivator ;  a  failure  in  every 
sense,  like  peachum  wood  supposed  to  be  brazilletto.  And  shall  I 
be  put  to  show  that  a  carrier  ought  not  to  pay  as  much  for  the  loss 
of  the  counterfeit  article  as  for  the  real  one  ? — the  same  for  a  pack- 
age of  bank  bills  on  an  institution  secretly  bankrupt  at  the  time,  as 
if  it  were  sound  ? — or  for  counterfeit  bills,  because  they  happen  to 
have  been  so  well  executed  as  to  deceive  the  bailor  and  those  to 
whom  he  might  innocently  have  paid  them  over,  as  if  genuine  ? 
With  deference,  it  seems  to  me  there  is  no  end  to  the  extravagan- 
cies of  the  principle. 

The  rule  laid  down  in  the  books  accords  entirely  with  what  I 
have  endeavored  to  deduce  from  the  reason  of  the  case.  In  1  Leigh's 
Nisi  Prius,  93,  it  is  briefly  stated  as  follows :  "  "Where  the  plaintiff 
claims  a  quantum  valebant  only,  and  there  is  no  price  agreed  upon, 
it  is  incumbent  on  him  to  prove  the  value,  and  it  is  competent  for 
the  defendant  to  show  the  inferiority  of  the  goods,  and  even  that 
they  were  of  no  value."  Indeed,  the  rule  is  elementary.  Black- 
stone  .says  that  where  goods  are  taken  without  any  agreement  on  the 
price,  the  law  infers  an  agreement  by  both  parties  that  the  real  value 
should  be  paid  (3  Black.  Com.  163). 

I  have  endeavored  to  show  that  this  real  value  implied  by  the 
law  is  not  a  fancy  price — not  the  price  raised  by  puffers  and  brokers 
— but  the  common  sense  value ;  such  as  a  due  degree  of  trial  and 
observation  will  justify.  This  answers  nearly  to  what  political  econ- 
omists call  the  natural  price  (Smith's  Wealth  of  Nations,  b.  1,  ch.  T). 
This  writer  shows  that  accidental  inflation  or  depression  cannot  last. 
It  must  be  temporary,  and  generally,  in  a  short  time,  be  brought  to 


110  CARRIERS. 

the  natural  or  central  price.  Now  when  the  artificial  price  is  not 
known  to  be  false,  the  purchaser  or  carrier  must  pay  it,  because  he 
is  unable  to  prove  the  truth.  But  when  the  defect  is  discovered — 
when  the  article  is  known  always  to  have  been  a  drug,  a  trick — that 
rule  which  despises  experiment,  and  demands  that  the  price  should 
be  regulated  by  the  delusion  of  a  bygone  monomania,  would,  as  ap- 
pears to  me,  but  illy  answer  the  legal  requirement  of  real  value. 
The  consideration  for  a  high  price  fails  when  it  is  found  to  be  ficti- 
tious ;  and  where  there  has  been  no  estoppel  by  agreement  to  pay  a 
certain  price,  I  am  aware  of  no  rule  or  case  which  forbids  evidence 
of  the  delusion  in  mitigation  of  damages.  According  to  the  testi- 
mony and  the  defendants'  offer,  the  trees,  proving  valueless  for  the 
purpose  of  the  silk  culture,  were  worth  nothing  except  to  sell. 
People  who  deal  in  such  articles,  must,  I  think,  in  order  to  secure  a 
high  price,  require  the  bailee  or  purchaser  to  stipulate  for  one,  under 
the  peril  of  being  brought  down  to  the  reasonable  value,  on  the 
worthlessness  of  their  wares  being  detected. 

The  principle  I  have  been  endeavoring  to  contest  was  carried  out 
at  the  trial  with  practical  fidelity.  In  a  set  of  cross-interrogatories 
used  on  examining  one  of  the  plaintiff's  witnesses,  he  was  asked  what 
price  the  plaintiff  paid  for  the  trees.  This  he  declined  to  answer. 
Yet  the  deposition  was  received  as  evidence.  The  witness'  excuse 
was :  "  As  all  business  matters  are  confidential  with  us,  I  do  not  feel 
at  liberty  here  state  the  price  Mr.  Smith  paid  for  the  trees."  The 
plaintiff  had  brought  them  to  Troy,  and  had  proved  what  such  trees 
sold  for  there ;  and  he  insists  that  Troy  was  the  only  market  which 
furnished  the  true  test  of  his  claim.  The  question  was  put  as  to  the 
price  which  they  brought  in  New  York.  Cui  bono  ?  for  the  plaintiff 
is  deprived  of  what  he  could  obtain  for  them  at  Troy ;  and  the  use 
they  were  to  be  put  to  consisted  in  their  excellence  as  an  article  of 
sale.  It  was,  therefore,  rather  what  the  plaintiff  could  get  than  what 
he  gave,  which  went  to  measure  the  damages. 

If  I  am  right,  however,  as  I  have  endeavored  to  show,  in  suppos- 
ing that  the  real  value  is  the  measure,  then  the  plaintiff  was,  by  the 
contumacy  of  the  witness,  cut  off  from  a  test  to  which  he  was  enti- 
tled. The  vendor  in  New  York  was  shown  to  have  been  a  dealer  of 
experience  in  the  Alpine  mulberry,  and  a  price  agreed  between  him 
and  the  plaintiff  would  be  such  evidence  of  the  real  value  as  the 
defendant  was  entitled  to  lay  before  the  jury,  if  he  chose.  It  was 
more  than  the  mere  assertion  of  the  New  York  vendor ;  for  the 
plaintiff  was  a  party  to  the  price,  and  virtually  conceded  that  the  net 
value  of  the  trees  was  no  more  than  he  gave.     It  should  have  been 


COCKBURN   v.  ALEXANDER.  Ill 

received  as  high  evidence  that  they  were  really  worth  no  more  at 
New  York.  The  price  he  gave,  with  the  charges  of  transportation 
and  other  incidental  expenses,  would  perhaps  have  come  much  nearer 
the  real  value  in  Troy  than  the  market  price  there.  At  any  rate,  I 
think  the  defendant  had  a  right  to  the  evidence  for  what  the  jury 
might  have  thought  it  worth.  Had  the  answer  brought  out  a  trivial 
price,  and  the  defendant  been  also  allowed  to  show,  as  he  proposed, 
that  the  trees  were  altogether  or  nearly  worthless,  the  whole  would, 
in  my  view,  have  presented  a  strong  case  for  mitigating  the  damages. 
New  trial  granted. 


Freight  ;  Assorted  Cargo  ;  Construction  of  Charter  Party. 


[1848.]  COCKBURN   V.   ALEXANDER  (6  0.  B.   791). 

A  ship  was  chartered  to  proceed  to  Port  Phillip,  and  there  load  from  the  freighter's 
factors  "  a  full  and  complete  cargo  of  wool,  tallow,  bark,  or  other  legal  merchan- 
dise,"— the  quantity  of  bark  not  to  exceed  100  tons,  and  the  quantity  of  tallow  and 
hides  not  to  exceed  80  tons  — and  was  to  proceed  therewith  to  London,  and  deliver 
the  same,  "  on  being  paid  freight,  as  follows :  For  wool,  lid.  per  lb.  pressed,  and 
l\d.  and  one-eighth  of  a  penny  per  lb.  unpressed,  gross  weight ;  tallow,  3^.  per  ton ; 
bark,  4.1.  per  ton ;  and  hides,  2/.  per  ton — the  latter  not  to  exceed  20  tons,  without 
consent  of  the  captain,  <fec. ;  one-third  of  the  freight  to  be  paid  in  cash,  on  unloading 
and  right  delivery  of  the  cargo,  and  the  remainder  in  cash,  or  by  approved  bills,  at 
two  months  following :  " 

Held,  that  the  freighter  was  entitled  to  load  the  ship  with  an  assorted  cargo  of  any  "  le- 
gal merchandise ; "  but  that  the  owners  were  entitled  to  be  paid  freight  upon  the 
supposition  that  the  loading  consisted  of  the  stipulated  quantities  of  the  enumerated 
goods,  viz.,  100  tons  of  bark,  60  tons  of  tallow,  and  20  tons  of  hides,  and  the  residue 
of  wool,  pressed  or  unpressed. 

Held  also,  that  parol  evidence  was  not  admissible  to  show  that,  by  the  custom  of  the 
place  of  loading,  the  cost  of  pressing  wool  was  to  be  borne  by  the  shipowner. 

This  was  an  action  of  assumpsit  on  a  memorandum  of  charter. 

The  cause  was  tried  before  Wilde,  C.  J.,  at  the  sittings  in  Lon- 
don after  Michaelmas  term,  1847.  The  plaintiffs  were  the  owners 
of  a  vessel  called  the  Parkfield,  of  which  one  of  them,  viz.,  White- 
side, was  also  master.  The  plaintiffs  by  this  action  sought  to  re- 
cover a  sum  of  1,740£.,  which  they  claimed  to  be  due  to  them  under 
the  memorandum  of  charter  declared  upon. 

A  sum  of  3,000£.  had  been  paid  on  account,  which  was  admitted 
by  the  particulars. 


112  CARRIERS. 

It  appeared  that  the  Parkfield  arrived  at  Port  Phillip  on  the  9th 
of  February,  1845.  Messrs.  Barnes  &  Co.,  the  agents  for  the  charterer 
at  that  place,  being  unable  to  procure  the  stipulated  quantity  of 
wool,  on  the  12th  of  March  addressed  and  sent  the  following  letter 
to  the  master : 

"  Melbouene,  March  12,  1845. 

"  Dear  Sir :  We  find,  owing  to  the  lateness  of  the  season,  that  it 
will  be  entirely  out  of  our  power  to  complete  the  lading  of  your  ves- 
sel according  to  the  terms  of  the  charter ;  and,  in  consequence  of 
such  inability,  we  have  now  to  apply  to  you  to  know  if  you  will  al- 
low us  to  put  on  board  your  ship  bark,  tallow,  wool,  or  other  mer- 
chandise, in  such  quantities  as  we  may  be  able  to  procure  ;  or,  in  the 
event  of  this  not  meeting  your  views,  if  you  will  consent,  on  receiv- 
ing an  adequate  compensation,  to  proceed  to  Sydney,  and  take  in 
there  a  portion  of  your  cargo.  In  your  reply,  you  will  please  con- 
sider we  are  fully  aware  that  any  offer  you  may  make  must  be  with- 
out prejudice  to  your  charter. 

We  are,  &c. 

(Signed)  "  W.  H.  Baenes  &  Co." 

"  To  Captain  Whiteside,  of  the  barque  Parkfield." 

To  this  letter,  the  captain  returned  the  following  answer  : 

"  Melbouene,  March  12,  1845. 

"  Gentlemen  :  I  received  your  letter  stating  your  inability  to  fur- 
nish me  with  a  cargo  according  to  the  terms  of  the  charter  party, 
and  requesting  to  know  whether  I  will  allow  you  to  put  on  board  the 
Parkfield  wool,  tallow,  bark,  and  other  merchandise,  in  such  quanti- 
ties as  you  may  be  able  to  procure  the  same.  In  reply,  I  beg  to  say 
that  the  interest  of  the  owners  will  not  permit  me  to  do  any  act 
which  may  prejudice  the  charter  party — as  you  justly  admit  I  can- 
not do.  I  cannot  depart  from  the  terms  of  the  charter  party,  unless 
it  be  on  the  distinct  understanding  that  my  meeting  your  wishes 
does  not  in  any  manner  or  shape  prejudice  the  claim  the  owners  of 
the  Parkfield  will  have  on  the  charterer,  James  Alexander,  Esq.,  of 
London,  for  the  full  amount  that  the  ship  would  earn,  if  loaded  ac- 
cording to  the  charter  party.  Upon  this  understanding  you  may 
load  the  ship  in  such  safe  way  as  you  can,  within  the  time  allowed 
by  the  charter. 

"  We  are,  &c. 

(Signed)  "J.  T.  Whiteside." 

"Messrs.  W.  H.  Baenes  &  Co." 


COCKBURN  v.    ALEXANDER.  113 

On  the  following  day  Messrs.  Barnes  &  Co.  addressed  a  letter  to 
Captain  Whiteside,  assenting  to  the  terms  of  his  letter  of  the  12th  ; 
and  on  the  2d  of  April  they  again  addressed  him  as  follows  : 

"  Melbourne,  April  2,  1845. 

"  Dear  Sir :  We  now  propose  that  the  ship  Parkfield  shall  be  got 
ready  to  proceed  to  Sydney,  and  there  fill  up  with  such  other  mer- 
chandise as  you  can  conveniently  and  safely  stow,  and  as  our  repre- 
sentatives may  be  there  able  to  procure.  Whilst  the  Parkfield  is 
being  prepared,  we  shall  ship  such  merchandise  as  we  may  be  able  to 
procure  here.  This  deviation  from  your  charter  party  is,  of  course,  to 
be  without  prejudice  to  your  position  in  any  respect,  and  is  for  the 
benefit  of  the  charter  alone.  We  will  pay  all  port  charges,  and  such 
other  expenses  as  you  are  put  to  in  calling  at  and  filling  up  at  Syd- 
ney, and  extra  insurance  effected  in  consequence  of  such  deviation  ; 
and  we  agree  to  pay  you  400Z.,  as  compensation  for  wear  and  tear  of 
vessel  to  Sydney,  &c. 

"  We  are,  &c. 
(Signed)  "  W.  H.  Baknes  &  Co." 

"  To  Captain  Whiteside,  of  the  barque  Parkfield." 

The  proposition  contained  in  this  letter  was  assented  to  by  the 
master,  and  the  Parkfield  accordingly  proceeded  to  Sydney  for  the 
purpose  of  completing  her  loading.  She  arrived  in  London  on  the 
31st  of  October,  1845,  having  on  board  a  full  cargo,  consisting  of 
500  bales  (61  tons)  of  wool,  741  casks  of  tallow  (weighing  260  tons), 
144  tons  of  bark,  35  tons  of  wood,  18  tons  of  hides,  and  about  30 
tons  of  other  goods  not  enumerated  in  the  charter  party,  viz.,  gum, 
hoofs  and  horns,  bones,  trenails  and  skins. 

On  the  part  of  the  plaintiffs,  it  was  insisted  that  they  were  en- 
titled to  receive  freight  to  the  same  amount  as  if  the  vessel  had 
brought  home  a  full  cargo  of  wool,  with  the  exception  of  the  strpu- 
lated  quantities  of  the  enumerated  articles,  viz.,  100  tons  of  bark  and 
80  tons  of  tallow  and  hides.  And  it  was  proved  that,  if  the  vessel 
had  been  so  loaded,  she  would  have  brought  home  2,604  bales  (or 
about  318  tons)  of  pressed  wool,  besides  the  stipulated  quantities  of 
bark,  tallow,  and  hides. 

The  defendant,  on  the  other  hand,  insisted  that,  under  the  words 
"  other  legal  merchandise,"  he  was  entitled  to  ship  such  an  assorted 
cargo  of  any  legal  merchandise,  as  was  consistent  with  the  proper 
loading  of  the  ship ;  and  that  no  specific  rate  of  freight  being  pre- 
scribed by  the  charter  for  non-enumerated  goods,  he  was  to  pay  for 
them  the  current  rate  of  freight  from  the  port  of  loading  to  London. 
8 


114  CARRIERS. 

It  was  conceded  that  if  the  plaintiffs'  construction  of  the  charter 
party  was  correct,  they  were  entitled  to  1,740/.  beyond  the  sum  al- 
ready paid — subject  to  the  following  question  :  By  the  terms  of  the 
charter  party,  the  charter  was  to  pay  freight  l{d.  per  lb.  for  com- 
pressed wool,  and  l%d.  and  one-eighth  of  a  penny  per  lb.  for  wool 
uncompressed.  On  the  part  of  the  defendant  it  was  contended  that 
the  compressing  (the  cost  of  which  would  amount  to  about  4:001.) 
was  to  be  done  at  the  expense  of  the  shipowners ;  and  evidence  was 
offered  for  the  purpose  of  showing  that  this  was  the  usual  course. 
That  evidence,  however,  was  objected  to  on  the  ground  that,  there 
being  no  ambiguity  on  the  face  of  the  charter  party  in  this  respect, 
parol  evidence  was  not  necessary  or  admissible  to  explain  it,  and  ac- 
cordingly it  was  rejected. 

The  Lord  Chief  Justice  directed  the  jury  to  find  for  the  plaint- 
iffs, for  1,740/.,  the  sum  claimed — reserving  leave  to  the  defendant 
to  move  to  enter  a  nonsuit  ;  or  to  reduce  the  damages  by  the  amount 
of  the  cost  of  pressing  the  wool,  if  the  court  should  be  of  opinion 
that  the  evidence  of  usage  was  improperly  rejected. 

It  was  agreed  that,  if  the  court  should  think  the  plaintiffs'  con- 
struction of  the  charter  party  erroneous,  the  amount  of  damages 
should  be  referred. 

A  verdict  was  entered  accordingly. 

And  after  argument  on  a  rule  of  nisi  to  enter  a  nonsuit,  the  fol- 
lowing opinions  were  delivered : 

Wilde,  C.  J. — Upon  the  best  consideration  that  I  am  able  to 
bring  to  this  case,  it  seems  to  me  that  the  rule  ought  to  be  dis- 
charged. The  charter  party  in  question  was  designed  to  attain  two 
objects — to  secure  a  full  and  complete  cargo  for  the  vessel — and  to 
ascertain  what  that  cargo  should  yield  to  the  shipowners  in  the  shape 
of  freight.  In  the  case  of  a  ship  going  out  in  ballast,  where  the 
bringing  back  a  home  cargo  from  a  distant  port  only  is  stipulated  for, 
it  is  certainly  most  unusual  for  the  charter  party  not  to  prescribe 
for  freight  to  be  paid  in  such  a  manner  as  would  enable  the  owner 
to  calculate  the  probable  amount  of  profit  that  will  accrue  to  him  for 
the  voyage.  And  when  we  find  that  considerable  care  and  pains 
have  been  bestowed,  in  framing  this  charter  party,  to  ascertain  and 
prescribe  certain  rates  of  freight  for  particular  articles  of  which  the 
cargo  is  to  consist,  one  would  not  expect  that  the  parties  would  al- 
together omit  to  mention  the  rate  of  freight  of  that  which  it  was 
contemplated  should  form  the  principal  part  of  the  loading.  And, 
further,  when  we  find  that  the  charter  party  prescribes  the  rate  of 
freight  to  be  paid  for  certain  enumerated  articles,  and  that  it  con- 


COCKBURN  v.   ALEXANDER.  115 

templates  the  shipping  of  other  goods,  but  makes  no  provision  for 
the  rate  of  freight  which  is  to  be  paid  for  them,  one  would  naturally 
conclude  that  the  specified  freight  for  the  articles  enumerated  was 
to  be  the  rule  and  guide  for  ascertaining  the  rate  to  be  paid  in  re- 
spect of  those  goods  as  to  the  payment  for  which  the  charter  party 
was  so  silent.  Now,  by  the  terms  of  this  charter,  the  ship  is  to  pro- 
ceed to  Port  Phillip  without  any  outward  cargo  :  there  is  then  a 
stipulation  as  to  freight,  and  also  a  stipulation  that  the  captain 
might  sign  bills  of  lading  at  any  rate  of  freight,  without  prejudice 
to  the  charter  party, — referring  to  the  charter  for  the  rate  of  freight 
payable  in  respect  of  goods  the  bills  of  lading  for  which  would  indi- 
cate a  different  rate.  The  charter  party  then  provides  that  the 
ship  shall  proceed  to  Port  Phillip,  and  there  load,  from  the  factors 
of  the  defendant,  a  full  and  complete  cargo  of  wool,  tallow,  bark,  or 
other  legal  merchandise,  restricting  the  quantity  of  bark  to  fifty 
tons,  and  the  quantity  of  tallow  and  hides  to  eighty  tons  ;  and  the 
home  cargo  is  to  be  delivered  in  London,  on  payment  of  certain 
stipulated  rates  of  freight  for  wool,  tallow,  bark,  and  hides.  If  the 
whole  cargo  is  to  be  delivered  on  payment  of  certain  rates  of  freight, 
stipulated  and  prescribed  by  the  charter  party,  is  there  not  great 
difficulty  in  supposing  that  any  freight  is  to  be  paid  according  to 
any  other  estimate  than  that  which  is  found  in  the  instrument  it- 
self ?  It  is  said,  that,  there  being  no  prescribed  rate  of  freight  for 
unenumerated  articles,  they  must  be  paid  for  at  a  reasonable  rate. 
What  is  a  reasonable  rate?  If  the  ship,  having  gone  out  with 
cargo  to  Port  Phillip,  or,  calling  there  on  her  voyage  home  from  In- 
dia, or  elsewhere,  were  what  is  called  a  seeking  ship,  the  current  rate 
of  freight  at  that  place  would  be  a  reasonable  rate  for  the  shipown- 
ers to  receive.  But,  would  the  same  rate  be  reasonable  in  the  case 
of  a  ship  going  out  from  England  under  a  contract  like  this  ?  What 
is  the  test  of  reasonableness  ?  It  seems  to  me  to  be  much  too  uncer- 
tain to  have  any  a2?plication  to  the  present  case.  Certain  articles 
here  are  specified,  for  which  freight  is  to  be  paid  at  certain  stipu- 
lated rates.  No  reference  is  made  to  any  precise  amount  of  freight 
to  be  paid  for  "  other  legal  merchandise."  Whether  those  words 
are  to  be  construed  as  authorizing  the  shipment  of  goods  ejusdem 
generis  with  those  enumerated,  or  as  extending  to  any  description  of 
legal  merchandise,  it  is  not  material  to  inquire  ;  the  charter  party 
clearly  contemplates  the  shipment  of  unenumerated  articles.  The 
parties  have  agreed  that  the  ship  should  go  out  to  Port  Phillip,  and 
there  receive  a  full  cargo  of  certain  goods — whether  of  the  goods 
enumerated,  or  goods  of  the  like  description,  or  goods  at  large.  The 


116  CARRIERS. 

vessel  is  not  fully  loaded.  What  are  the  damages  payable  for  this 
breach  of  contract  ?  How  would  the  parties  have  settled,  if  the  ship 
had  brought  home  a  full  and  complete  cargo  ?  They  provide  for 
none  other  than  stipulated  rates  of  freight;  leaving  the  charter 
party  altogether  silent  on  the  subject  of  freight  of  goods  not  enu- 
merated, if  it  is  supposed  that  the  ship  is  to  bring  home  goods  on 
freight  not  assimilated  to  the  rates  of  freight  mentioned  in  the  con- 
tract. Looking  at  the  whole,  the  true  construction  of  the  charter 
party  appears  to  me  to  be,  not  to  leave  the  charterer  at  liberty  to 
bring  home  goods  on  freight  at  an  unascertained  and  unprescribed 
rate ;  but  that,  though  he  might  be  entitled  to  ship  any  description 
of  legal  merchandise,  the  rate  of  freight  on  payment  of  which  he  is 
entitled  to  have  the  goods  delivered  to  him  in  London,  is  distinctly 
prescribed  and  ascertained  by  the  charter  party.  The  plaintiffs  (the 
owners)  contend  that  they  are  entitled  to  calculate  the  freight,  ac- 
cording to  the  rates  mentioned  in  the  charter  party,  in  the  way  least 
favorable  to  themselves,  and  most  favorable  to  the  charterer.  "  Put 
on  board,"  they  say,  "  the  stipulated  quantities  of  tallow,  bark,  and 
hides,  and  then  calculate  the  freight  as  if  the  remaining  tonnage  of 
the  ship  was  entirely  occupied  by  wool."  It  appears  to  me  that  the 
plaintiffs  are  at  least  entitled  to  that,  as  well  upon  the  true  and  ob- 
vious construction  of  the  charter  party  itself,  as  upon  the  authority 
of  decided  cases,  by  which  the  question  ought,  in  my  opinion,  to  be 
now  considered  as  settled.  In  Thomas  v.  Clarke  (2  Stark.  IS".  P.  C. 
450),  Lord  Tenterden,  thirty  years  ago,  laid  down  a  rule  upon  this 
subject  that  has  repeatedly  been  recognized  since.  That  was  an  ac- 
tion on  a  charter  party,  whereby  the  owner  of  a  ship  chartered  her 
to  the  defendants  for  a  voyage  to  Rio  Janeiro  and  back  to  Liverpool. 
By  the  charter  party,  the  defendants  contracted  to  furnish  a  full 
cargo  for  the  return  voyage  at  Rio  Janeiro.  A  great  many  articles 
were  specified  in  the  charter  party — such  as  coffee,  cotton,  sugars, 
&c. — of  which  the  cargo  might  consist ;  and  the  defendants  con- 
tracted to  pay  for  the  freight  of  each  of  these  articles  separately  by 
weight ;-  as,  for  coffee,  12?.  6d.  per  cwt.,  &c.  The  defendants  failed 
to  supply  any  cargo  at  Rio  Janeiro,  and  the  ship  returned  empty. 
One  question  in  the  cause  was,  how  the  damages  were  to  be  esti- 
mated. It  was  submitted,  on  the  part  of  the  defendants,  that  they 
were  not  liable  for  more  than  the  amount  of  the  freight,  supposing 
the  vessel  to  have  been  laden  with  one  of  the  articles  specified, 
which  would  have  yielded  the  lowest  amount  of  freight.  Evidence 
was  given  of  the  amount  of  freight,  calculated  on  the  supposition 
that  one-third  of  the  cargo  consisted  of  coffee,  another  third  of  cot- 


COCKBURN  v.   ALEXANDER.  117 

ton,  and  another  third  of  sugar.  Supposing  the  whole  cargo  to  have 
consisted  of  coffee,  or  of  cotton,  the  amount  would  have  been  higher 
than  the  average  taken ;  but,  if  it  had  consisted  of  sugar  only,  the 
amount  would  have  been  less  than  this  average.  Evidence  was  also 
given  of  what  the  vessel  had  actually  earned  on  former  and  similar 
voyages,  which  exceeded  the  demand  made  by  the  plaintiff  for  dead 
freight,  according  to  the  estimate  taken  in  that  instance.  Abbott, 
C  J-,  intimated  that  the  proper  course  would  be  to  estimate  the 
freight  by  means  of  an  average,  so  as  to  take  neither  the  greatest 
possible  freight,  nor  the  least.  Nothing  is  more  important  than  that 
these  rules  of  commercial  law  should  be  certain  and  well  defined  ; 
and,  where  a  rule  has  been  so  long  laid  down,  and  so  repeatedly 
acted  upon  by  those  who  are  interested  in  the  subject,  nothing  can 
be  more  mischievous  than  again  to  throw  it  at  large  and  thus  in- 
troduce uncertainty  and  confusion.  The  plaintiffs  here  do  not  seek 
to  go  so  far  as  was  done  in  Thomas  v.  Clarke.  The  case  of  Thomas 
v.  Clarke  is  cited  as  an  authority  in  Lord  Tenterden's  valuable 
work  on  shipping  (8th  ed.  p.  256) — -a  book  that  is  no  less  in  the 
hands  of  commercial  men  than  of  lawyers.  Then  comes  the  case  of 
Capper  v.  Forster,*  where  Thomas  v.  Clarke  is  again  recognized  as 
an  authority.  In  that  case,  it  was  agreed  by  memorandum  of  char- 
ter between  the  plaintiffs,  as  owners  of  the  ship  Flora,  and  the  de- 
fendant, that  the  ship  should  proceed  with  a  cargo  to  Rio  Nunez, 
and,  having  discharged  the  same,  should  reload  a  full  and  complete 
cargo  of  lawful  merchandise,  which  the  defendant  bound  himself  to 
ship,  and  should  therewith  proceed  to  London,  and  deliver  the  same, 
on  being  paid  freight  as  follows,  in  full  for  the  above  voyage,  viz., 
for  gum,  bees-wax,  ivory,  and  palm-oil,  41.  per  ton  at  20  cwt.  net  at 
the  king's  beam ;  hides  at  71.  per  ton  of  20  cwt.  net  at  the  king's 
beam  ;  paddy  or  rice,  3L  per  ton,  net  weight ;  bullion,  1  per  cent. ; 
all  or  either,  at  the  option  of  the  charterer,  &c.  ;  should  the  quantity 
of  paddy  exceed  80  tons,  20s.  per  ton  extra  freight  was  to  be  paid 
on  the  surplus ;  and  the  quantity  of  hides  was  not  to  exceed  50  tons. 
Should  paddy  or  rice  be  shipped,  the  charterer  was  to  find  dunnage  ; 
and,  should  the  vessel  not  be  full  at  Rio  Nunez,  the  charterer  was 
to  have  the  liberty  of  filling  her  up  at  St.  Mary's.  The  breach  was, 
that  the  defendant  did  not  load  at  Rio  Nunez,  or  fill  up  at  St.  Mary's 

*  Between  Capper  v.  Forster,  and  the  principal  case,  the  difference  appears  to  be  in- 
considerable ;  and  by  that  case,  until  otherwise  decided  in  a  court  of  error,  a  court  of 
co-ordinate  jurisdiction  would  be  bound.  The  difficulty  will,  perhaps,  be  found  to  lie  in 
supporting  Capper  v.  Forster,  where  there  was  a  power  to  ship  unenumerated  goods,  by 
Thomas  v.  Clarke,  where  no  such  power  is  stated  io  the  report. 


118  CARRIERS. 

a  full  and  complete  cargo  of  lawful  merchandise,  but  that,  on  the 
contrary,  after  loading  a  small  portion  of  such  merchandise  at  Rio 
Nunez,  he  proceeded  to  St.  Mary's,  and  there  wrongfully  filled  up 
the  ship  with  timber  and  wood.  To  this  the  defendant,  admitting 
that  he  had  not  loaded  a  full  cargo  of  lawful  merchandise  at  Rio 
Nunez,  pleaded  that  he  had  filled  up  the  ship  at  St.  Mary's  with 
such  lawful  merchandise.  It  appeared  at  the  trial,  that  the  master, 
having  loaded  at  Rio  Nunez  one-seventh  of  a  full  cargo,  including 
one  box  of  gold  dust,  and  153  quarters  of  paddy,  proceeded  to  St. 
Mary's,  there  took  on  board  205  quarters  of  paddy,  and  600  hides, 
and  filled  up  the  rest  of  the  ship  with  eighty-four  loads  of  teak- 
wood,  at  the  freight  of  4X.  a  load,  under  a  protest  from  the  captain, 
that  it  was  not  to  affect  the  claim  of  the  owners.  The  defendant 
paid  into  court  593Z.  10s.  6rt.  The  plaintiffs  contended  that  they 
were  entitled  to  the  freight  which  would  have  been  earned  if  there 
had  been  a  full  cargo  of  the  articles  enumerated  in  the  charter  party. 
The  defendant  contended  that  he  had  a  right  to  put  on  board  a  cargo 
consisting  of  any  one  of  the  enumerated  articles.  His  witnesses 
proved  that  a  cargo  of  palm-oil  would  not  have  produced  538^.,  and 
that  it  was  usual  in  this  trade  to  insert  in  the  charter  the  articles 
here  specified,  and  to  add  "  and  other  goods  in  proportion."  The 
jury  found  that  a  full  cargo  of  the  various  articles  enumerated, 
would  have  produced  6681.  freight — a  cargo  of  palm-oil  only  4521. ; 
that  the  defendant  did  not  fill  up  at  St.  Mary's  a  full  and  complete 
cargo  of  lawful  merchandise  according  to  the  true  intent  of  the 
charter,  and  that  there  remained  due  to  the  plaintiffs  a  sum  of  74L 
Is.  6d.,  for  which  they  gave  their  verdict.  A  motion  having  been 
made  for  a  new  trial,  or  for  a  reduction  of  damages,  the  court  was- 
of  opinion  that  the  jury  were  right  in  finding  that  the  loading  the 
lumber  at  St.  Mary's,  although  it  was  the  staple  commodity  of  the 
place,  was  not  a  filling  up  with  lawful  merchandise  according  to  the 
intention  of  the  parties,  and  that  the  damages  were  properly  esti- 
mated on  the  same  principle  as  if  the  ship  had  come  home  empty, 
the  freight  being  calculated  upon  average  quantities  of  all  the  arti- 
cles enumerated.  Tindal,  C.  J.,  in  delivering  the  judgment  of  the 
court,  there  says  :  "  The  opinion  expressed  by  the  very  learned  and 
accurate  writer  of  the  law  of  ships  and  shipping,  referred  to  in  the 
course  of  the  argument,  and  the  case  of  Thomas  v.  Clarke,  the  de- 
cision of  which  was  not  appealed  from  by  any  motion  to  the  court, 
appear  to  us  to  lay  down  and  establish  a  rule  which  is  at  once  just 
and  reasonable,  and  may  fairly  be  inferred  to  meet  the  intention  of 
the  contracting  parties."     That   case   occurred   eleven   years   ago. 


COCKBURN   v.    ALEXANDER.  119? 

Upon  these  two  cases,  therefore,  of  Thomas  v.  Clarke  and  Capper  v. 
Forster,  I  rest  the  opinion  which  I  have  formed  upon  the  present  oc- 
casion. I  think  the  parties  did  not  intend,  in  ascertaining  the  rate 
of  freight  for  any  part  of  the  cargo,  to  enter  into  any  inquiry  dehors 
the  charter  party,  but  in  that  respect  to  be  guided  entirely  by  it. 
The  capacity  of  the  ship  being  ascertained,  the  damages  are  to  be 
calculated,  in  case  of  a  breach,  as  if  the  charterer  had  performed  the 
contract  in  the  way  most  favorable  to  himself,  and  least  favorable  to 
the  shipowners.  I  think  the  principle  contended  for  on  the  part  of 
the  plaintiffs  is  the  correct  one,  and  that  the  verdict  ought  not  to  be 
disturbed. 

With  regard  to  the  cost  of  pressing  the  wool,  the  point  comes 
before  us  upon  a  question  as  to  the  construction  of  the  contract.  If 
it  is  to  be  paid  by  the  owners,  the  charterer  is  entitled  to  a  deduc- 
tion from  the  amount  of  damages  for  which  the  verdict  is  taken. 
The  charter  party  is  totally  silent  upon  the  subject.  There  is  noth- 
ing therein  to  enable  us  to  come  to  a  conclusion  as  to  which  of  the 
parties  ought  to  pay  it.  It  evidently  never  entered  into  their  con- 
templation at  all.  There  being  nothing,  therefore,  on  the  face  of 
the  contract  to  raise  any  doubt  or  ambiguity  that  requires  to  be  re- 
moved or  explained,  it  is  not  a  case  in  which  parol  evidence  was  ad- 
missible. 

On  neither  point,  therefore,  do  I  see  any  reasonable  ground  for 
quarreling  with  the  verdict. 

Maule,  J. — I  also  think  this  rule  should  be  discharged.  The 
construction  of  this  charter  party  certainly  presents  some  difficulty ; 
because,  although  it  permits  the  charterer  to  put  on  board  other  ar- 
ticles than  those  which  are  enumerated,  it  does  not  precisely  ascer- 
tain and  regulate  the  amount  of  tonnage  to  be  paid  for  them.  It 
mentions  the  rates  of  freight  to  be  paid  for  wool,  tallow,  hides  and 
bark  ;  but  it  does  not,  in  terms,  specify  the  rate  payable  for  unenu- 
merated  articles — probably  because  it  would  have  been  difficult  to 
mention  every  description  of  articles  of  commerce  that  might  have 
been  put  on  board  under  this  charter  party.  The  question,  there- 
fore, is  whether  by  reasonable  intendment  from  the  words  used,  we 
can  see  what  the  parties  meant  should  be  paid  for  freight  of  "  other 
legal  merchandise."  I  think  we  can.  The  charterer  engages  to  load 
a  full  and  complete  cargo  of  wool,  tallow,  bark,  or  any  other  legal 
merchandise  he  may  choose,  with  a  proviso  that  the  quantity  of  bark 
shall  not  exceed  fifty  tons — to  be  increased  to  one  hundred  tons  un- 
der circumstances  that  it  is  unnecessary  to  advert  to — and  tallow  and 
hides  not  to  exceed  eighty  tons.     The  homeward  cargo  is  to  be  de- 


120  CARRIERS. 

livered  in  London  only  on  payment  of  freight  as  follows — specifying 
the  rates  of  freight  for  wool,  tallow,  bark  and  hides.  It  appears  to 
me  that,  inasmuch  as  the  cargo  is  to  be  delivered  on  payment  of 
freight  "  as  follows,"  the  charterer  is  only  entitled  to  have  them  on 
payment  of  freight  at  the  rates  specified.  No  freight  being  specified 
in  respect  of  certain  articles,  would  the  charterer  be  entitled  to  have 
them  delivered  to  him  without  payment  of  any  freight?  That 
clearly  could  not  have  been  the  meaning  of  the  parties.  I  think 
that  clause  excludes  any  other  mode  of  estimating  freight  than  that 
which  is  furnished  by  the  charter  party  itself.  It  is  to  be  borne  in 
mind  that  we  are  here  dealing  with  a  mercantile  instrument,  in  the 
interpretation  of  which  we  must  look  at  the  substance  of  the  matter, 
and  are  not  restrained  to  such  nicety  of  construction  as  is  the  case 
with  regard  to  conveyances,  pleadings,  and  the  like.  I  think  the 
proper  meaning  of  the  clause  is,  that  the  cargo  shall  be  delivered  on 
payment  of  freight  of  a  kind  and  amount  that  the  freight  of  a  full 
cargo  of  wool  would  come  to,  with  the  exception  of  so  much  space 
as  the  stipulated  articles  would  occupy.  That  being  so,  the  question, 
upon  a  breach  of  the  contract  is,  what  is  the  condition  in  which  the 
plaintiffs  would  be  if  the  defendant  had  performed  the  contract  ? 
Generally  speaking,  where  there  are  several  ways  in  which  the  con- 
tract might  be  performed,  that  mode  is  adopted  which  is  the  least 
profitable  to  the  plaintiff,  and  the  least  burdensome  to  the  defend- 
ant. In  the  present  case,  I  think  we  may  well  decide  the  question 
according  to  that  which  the  plaintiffs  are  contented  to  receive.  It 
may  be  that,  in  cases  of  this  sort,  different  amounts  might,  under 
different  states  of  circumstances,  be  the  proper  measure  of  damages 
for  the  breach  of  contract.  Suppose  there  were  goods  which  the 
charterer  might  have  put  on  board  if  he  had  chosen  to  do  so,  and  did 
not— it  may  be  that  he  had  the  option  of  shipping  any  one  of  the 
enumerated  articles  :  there  may  have  been  goods  at  the  port  of  load- 
ing which  he  might  have  shipped,  but  none  of  the  enumerated  goods ; 
there  may  have  been  goods  the  loading  of  which  would  have  been 
the  most  profitable  to  the  owner,  and  the  most  onerous  to  the  char- 
terer ;  or  the  converse  might  have  been  the  case.  Again,  suppose 
there  were  no  goods  at  all  at  the  place  ready  for  shipment,  that 
would  present  a  totally  different  state  of  things ;  there,  the  non- 
shipment  of  a  cargo  would  result  from  the  charter's  inability  to  ship 
a  cargo.  If  you  could  show  that  there  were  goods  which  the  char- 
terer might  have  obtained,  then  the  proper  measure  of  damages 
would  be  the  non-shipment  of  that  cargo.  But,  if  there  were  none, 
it  may  be  that,  in  ascertaining  the  damages,  an  average  is  to  be 


COCKBURN   v.   ALEXANDER.  121 

taken  of  all  possible  kinds  of  goods.  It  is  in  that  way,  I  think,  that 
Lord  Tentekden  arrived  at  the  opinion  he  expressed  in  Thomas  v. 
Clarke,  viz.,  that,  where  there  is  no  cargo  at  all  to  be  had,  the  aver- 
age is  to  be  taken  of  all  possible  kinds  of  cargo ;  that  is,  that  yon  are 
to  assume,  contrary  to  the  fact,  that  there  are  goods  of  each  of  the 
kinds  enumerated — because  the  obtaining  of  goods  of  any  one  kind, 
where  none  are  in  truth  obtained,  cannot  a  priori  be  considered  as 
more  probable  than  the  obtaining  of  any  of  the  others — and,  taking 
an  average,  and  assuming  that  to  be  the  way  in  which  the  contract, 
if  performed  at  all,  would  probably  have  been  performed,  you  are  to 
make  that  the  basis  of  the  calculation  of  freight.  That  certainly  is 
not  a  very  usual  mode  of  dealing  with  a  contract.  I  do  not,  how- 
ever, think  it  necessary  to  discuss  that  further,  because' — adopting  the 
construction  which,  for  the  reasons  I  have  mentioned,  I  think  we  are 
bound  to  put  upon  this  contract,  viz.,  that  the  payment  of  freight 
which  is  to  entitle  the  charterer  to  a  delivery  of  the  goods,  is  in  ef- 
fect stipulated  on  the  face  of  the  charter  party — the  damages  here 
claimed  are  estimated  according  to  a  scale  which  is  the  least  onerous 
to  the  defendant. 

As  to  the  cost  of  compressing  the  wool,  I  do  not  think  there  is 
any  such  ambiguity  in  the  charter  party  in  this  respect  as  to  let  in 
parol  evidence  upon  the  subject.  Pressed  and  unpressed  wools  are, 
upon  this  charter  party,  to  be  considered  as  two  different  kinds  of 
goods,  which  are  to  be  carried  at  two  distinct  rates  of  freight.  If 
the  charterer  thinks  fit  to  ship  pressed  wool,  he  is  to  pay  a  freight  of 
l^d.  per  lb. ;  if  unpressed,  one-eighth  of  a  penny  per  lb.  more ;  or 
*%  of  a  penny  in  the  one  case,  and  13/8  in  the  other.  In  all  proba- 
bility those  rates  were  fixed  upon  because  the  parties  knew  from  ex- 
perience that  both  would  result  in  about  the  same  amount  of  freight. 
Be  that  as  it  may,  I  conceive  the  pressing  of  the  wool  is  solely  the 
affair  of  the  person  offering  it  for  shipment.  The  charterer  has  a 
right  to  have  his  wool  carried,  pressed  or  unpressed,  as  he  pleases. 
There  is  no  more  reason  for  charging  the  cost  of  pressing  to  the 
owners,  than  there  would  have  been  to  charge  them  with  the  ex- 
pense of  washing  the  wool.  I  cannot  perceive  the  smallest  ground 
for  doubt  upon  the  subject.  I  therefore  see  no  reason  for  making 
any  alteration  in  the  verdict,  or  for  leaving  the  matter  open  to  fur- 
ther discussion  ;  but  upon  both  grounds,  I  think  the  rule  should  be 
discharged. 

V.  Williams,  J. — 1  am  of  the  same  opinion,  though  I  must  con- 
fess, that,  but  for  the  decision  of  this  court  in  Capper  v.  Forster,  I 
should  have  felt  some  difficulty  in  arriving  at  that  conclusion.     It 


122  CARRIERS. 

would,  as  I  conceive,  be  impossible  to  make  this  rule  absolute,  as  to 
the  first  point,  without  directly  overruling  that  case.  My  difficulty 
is  this :  It  is  not  controverted,  that  the  true  measure  of  damages  the 
plaintiffs  are  entitled  to  claim  under  this  charter  party,  is  the  least 
amount  of  freight  which  the  vessel  would  have  earned  if  the  char- 
terer had  loaded  at  Port  Phillip  an  unobjectionable  cargo.  And  this 
leads  to  two  inquiries — first,  what  is  an  unobjectionable  cargo  ? — 
secondly,  what  is  the  least  amount  of  freight  payable  on  such  a 
cargo,  by  the  terms  of  this  charter  party  ?  The  charter  party  pro- 
vides that  the  charterer  shall  load  "  a  full  and  complete  cargo  of 
wool,  tallow,  bark,  or  other  legal  merchandise."  I  find  nothing,  on 
the  face  of  the  instrument,  to  constrain  the  court  to  narrow  the 
meaning  that  naturally  and  properly  belongs  to  these  words,  "  other 
legal  merchandise,"  by  construing  them  to  mean  goods  ejusdem  gen- 
eris with  those  enumerated.  For  instance,  when  the  parties  come  to 
limit  the  quantities  of  each  of  the  enumerated  articles  that  are  to  be 
shipped,  they  mention  "hides."  Now,  it  is  difficult  to  say  that 
"hides"  are  ejusdem  generis  with  "wool,  tallow,  or  bark,"  either 
per  se,  or  with  reference  to  the  amount  of  freight  that  is  to  be  paid 
for  them.  It  seems  to  me,  therefore,  upon  the  true  construction  of 
this  charter  party,  that  the  defendant  would  have  incurred  no  breach 
of  it,  if  he  had  sent  home  the  ship  with  a  full  cargo  of  cotton,  or 
any  other  legal  merchandise.  The  next  question  is,  what  is  the  least 
amount  of  freight  payable  ?  It  is  for  the  plaintiffs  to  make  out  what 
is  the  amount  of  freight  they  are  entitled  to.  Considering  that  cer- 
tain rates  of  freight  are  prescribed  for  certain  enumerated  articles, 
and  none  for  "  other  legal  merchandise  "  not  specified,  I  should,  but 
for  the  case  of  Capper  v.  Forster,  have  felt  great  difficulty  in  saying 
that,  having  fixed  the  rate  of  freight  to  be  paid  for  certain  enumer- 
ated articles,  and  having  made  no  specific  provision  for  the  freight 
of  unenumerated  goods,  the  plaintiffs'  only  mode  of  obtaining  com- 
pensation in  respect  of  them  would  be  by  resorting  to  a  quantum 
meruit.  The  case  of  Capper  v.  Forster,  however,  certainly  shows 
that,  so  far  at  least  as  regards  the  mode  of  calculating  freight, 
"  other  legal  merchandise  "  must  be  construed  to  mean  goods  ejus- 
dem generis  with  those  before  enumerated,  and  the  freight  of  which 
was  ascertained  and  determined ;  that  is,  that  they  are  to  have  the 
incident  of  producing  the  same  amount  of  freight  as  the  enumerated 
goods.  That  case,  therefore,  warrants  the  conclusion  that  the 
plaintiffs  on  the  present  occasion  are  entitled  to  what  they  claim, 
viz.,  damages,  estimated  at  the  lowest  amount  of  freight  which  they 
would  have  been  entitled  to  for  a  full  caro-o  of  enumerated  articles 


OGDEN  v.   MARSHALL.  123 

taken  in  the  proportions  provided  by  the  charter  party.  I  quite 
agree  with  the  Lord  Chief  Justice,  that  it  would  be  inconvenient 
now  to  unsettle  the  law  as  established  by  Thomas  v.  Clarke  and  Cap- 
per v.  Forster. 

As  to  the  cost  of  pressing  the  wool,  what  I  understand  the  char- 
ter party  to  mean  is  this,  that  if  the  charterer  chooses  to  send  on 
board  wool  in  a  more  portable  shape,  viz.,  pressed,  he  is  to  pay 
freight  for  it  at  the  rate  of  l^d.  per  lb.  ;  but  that,  if  he  sends  it  in  a 
less  portable  shape,  viz.,  without  having  been  submitted  to  pressure, 
he  shall  pay  one-eighth  of  a  penny  more,  in  consequence  of  the  in- 
creased space  it  would  occupy  in  the  ship.  There  is,  I  think,  some 
little  difficulty  upon  this  point  also,  inasmuch  as  we  do  not  know 
what  would  have  been  the  exact  amount  of  freight  which  the  ship 
would  have  earned  if  she  had  brought  home  the  stipulated  quantities 
of  bark,  tallow,  and  hides,  and  all  the  rest  of  the  cargo  had  con- 
sisted of  unpressed  wool.  That  point,  however,  does  not  appear  to 
have  been  mooted  at  the  trial.  The  only  question  seems  to  have 
been,  whether  parol  evidence  was  admissible  to  show  who  was  to 
bear  the  cost  of  pressing  the  wool.  Evidence  of  that  sort  clearly 
was  not  admissible  here.  Upon  the  whole,  therefore,  I  see  no  ob- 
jection to  the  plaintiffs'  keeping  their  verdict. 

Rule  discharged. 


Carrier  ;  Refusal  to  transport  ;  Rise  in  Market  Value  ;  Goods 

to  be  transported. 


[1853.]  Ogden  v.  Marshall  (8  N.  Y.  340). 

The  measure  of  damages  in  an  action  against  a  carrier  for  refusal  to  carry  goods  accord, 
ing  to  his  agreement,  where  the  rates  of  transportation  have  risen,  is  the  difference 
between  the  stipulated  price  and  that  which  the  shipper  is  obliged  to  pay.  To 
recover  such  damages,  the  plaintiff  need  not  prove  that  he  had  the  goods  ready  for 
8hipment. 

The  defendant  agreed  to  carry  12,000  bushels  of  corn  from  New 
York  to  Liverpool,  in  the  ship  Yorkshire,  at  the  price  of  sixteen 
pence  sterling  a  bushel. 

The  declaration  averred  that  the  plaintiff  was  ready  to  ship  the 
corn.     On  the  trial,  the  plaintiff  merely  proved  the  contract,  the 


124  CARRIERS. 

carrier's  refusal  to  receive  the  cargo,  and  the  fact  that  just  after  the 
contract  was  made,  the  price  of  freight  rose  from  sixteen  to  eighteen 
pence  sterling  per  bushel,  and  before  the  ship  sailed,  to  nineteen 
pence.     He  then  rested. 

Mr.  Chief  Justice  Oakley,  before  whom  the  case  was  tried, 
charged  the  jury  that  the  plaintiff  was  only  entitled  to  nominal  dam- 
ages, and  the  jury  found  a  verdict  accordingly. 

The  plaintiff  appealed  from  the  judgment  on  this  verdict. 

Jewett,  J. — It  was  assumed  on  the  trial  in  the  court  below,  and 
on  the  argument  in  this  court,  that  the  evidence  tended  to  establish 
a  valid  contract  made  between  the  parties,  by  which  the  defendant 
agreed  to  receive  from  the  plaintiff,  on  board  of  the  packet  ship 
Yorkshire,  12,000  bushels  of  corn  at  New  York,  and  carry  it  to  the 
port  of  Liverpool,  and  to  sail  on  the  sixteenth  day  of  January,  1847, 
at  and  for  the  price  of  sixteen  pence  sterling  per  bushel,  which  the 
defendant  afterwards  refused  to  perform,  and  that  after  the  making 
of  the  contract  and  before  the  sailing  of  the  ship,  freight  rose  to 
nineteen  pence  sterling  per  bushel.  The  only  question  submitted  is, 
whether  the  plaintiff  under  these  circumstances,  is  limited  in  his 
recovery  for  such  a  breach  of  the  contract,  to  nominal  damages. 

It  is  a  general  rule  of  law,  that  when  an  injury  has  been  sustained, 
for  which  the  law  gives  a  remedy,  that  remedy  shall  be  commen- 
surate to  the  injury  sustained.  On  all  contracts,  the  party  injured 
by  the  breach  or  non-performance  is  entitled  to  a  full  indemnity. 
From  the  facts  in  this  case,  I  think  that  the  difference  between  the 
price  agreed  upon  for  transporting  the  corn,  and  that  for  which  its 
carriage  might  have  been  obtained  by  others,  at  the  time  when  the 
ship  was  to  receive  the  corn,  is  the  true  measure  of  damages  for  the 
breach  of  the  contract  by  defendant. 

In  the  case  of  Bracket  v.  McNair  (4  Johns.  170),  it  was  held  that 
in  an  action  for  the  breach  of  a  contract  to  transport  salt  from  Os- 
wego to  Queenston,  where  by  the  refusal  and  neglect  of  the  carrier 
to  take  the  salt  at  the  time  agreed,  the  opportunity  to  transport  the 
same  was  wholly  lost  by  the  intervention  of  the  embargo  or  non- 
intervention act,  the  difference  between  the  value  of  the  salt  to  be 
carried,  at  the  place  of  its  intended  embarkation  and  its  value  at  the 
place  of  its  intended  delivery,  less  the  carriage  and  necessary  ex- 
penses, was  the  true  measure  of  damages.  The  principle  of  that 
case  governed  the  decision  in  O'Conner  v.  Foster  (10  Watts,  418). 

The  judge  erred  in  his  charge  to  the  jury  that  the  plaintiff  was 
not  entitled  to  recover  beyond  nominal  damages.  The  judgment 
must  be  reversed  and  a  new  trial  ordered,  with  costs  to  abide  the 
event. 


OGDEN   v.  MARSHALL.  125 

Ruggles,  Ch.  J.,  Gardiner,  Johnson  and  Mason,  JJ.,  concurred 
in  the  opinion  of  Judge  Jewett. 

Willard,  J.  (dissenting). — Without  proof  that  the  plaintiff  had 
corn  to  ship,  the  law  will  not  imply  that  he  sustained  damages  be- 
yond a  nominal  sum  by  the  defendant's  breach  of  contract.  There 
is  no  evidence  from  which  any  other  damages  can  be  inferred. 

When  a  right  is  given  by  law,  and  a  remedy  for  its  violation, 
such  violation  imports  damages ;  and  when  no  penal  damages  are 
proved  the  law  will  give  nominal  damages  to  the  party  (Whithmer 
v.  Cutte,  1  Gal.  C.  C.  R.  478).  The  plaintiff  in  this  case  could  not 
have  sustained  any  penal  damage,  unless  he  had  the  corn  when  he 
made  the  contract,  or  produced  it  afterward  and  had  it  ready  to 
ship. 

In  actions  which  sound  in  damages,  the  jury  seem  to  have  a  dis- 
cretionary power  of  giving  what  damages  they  think  proper ;  for 
though  in  contracts  the  very  sum  specified  and  agreed  on  is  usually 
given,  yet  if  there  are  any  circumstances  of  hardship,  fraud  or  de- 
ceit, though  not  sufficient  to  invalidate  the  contract,  the  jury  may 
consider  them  and  proportion  and  mitigate  the  damages  accordingly 
(Bac.  Abridg.  tit.  Damages,  letter  D,  1).  Thus  in  an  action  brought 
on  a  promise  of  1,000Z.,  if  the  plaintiff  should  find  the  defendant's 
owl,  the  court  declared  that  though  the  promise  was  proved,  the 
jury  might  mitigate  the  damages  (lb.).  The  plaintiff  declared  on  a 
promise  to  pay  for  a  horse,  a  barley  corn  a  nail,  doubling  every  nail, 
and  averred  that  there  were  thirty-two  nails  in  every  shoe,  which 
doubling  every  nail,  came  to  five  hundred  quarters  of  barley ;  which 
being  tried  before  Hyde,  he  directed  the  jury  to  give  the  value  of 
the  horse  in  damages,  and  accordingly  they  gave  SI.,  and  it  was  held 
good  (lb.  ;  Lev.  111).  In  Thornburgh  v.  Whitaker  (3  Salk.  97),  the 
defendant,  in  consideration  of  half  a  crown  paid  him  by  the  plaintiff, 
promised  to  give  the  plaintiff  two  grains  of  rye  on  Monday  follow- 
ing, and  so  on  every  Monday,  double  by  progressing,  for  one  year. 
The  defendant  pleaded  non-assumpsit,  and  upon  motion  to  stay  the 
trial,  it  was  denied ;  for  per  curiam,  though  it  amounts  to  a  great 
quantity,  yet  the  jury  will  consider  the  folly  of  the  defendant,  and 
give  reasonable  damages.  In  the  foregoing  cases,  a  rigid  enforce- 
ment of  the  contract  according  to  the  letter  would  have  been  oppress- 
ive and  perhaps  ruinous.  There  was  a  great  disproportion  between 
the  actual  consideration  and  the  thing  promised.  The  defendant 
might  in  each  case  be  presumed  to  have  been  overreached  in  the  bar- 
gain, or  to  have  made  it  inconsiderately.  The  mitigation  allowed  to 
be  made  by  the  jury  rested  on  the  same  principles  which  govern 


126  CARRIERS. 

courts  of  equity  in  relieving  against  penalties  and  forfeitures.  If 
the  party  obtains  the  actual  damages  he  has  suffered,  he  ought  not 
to  have  the  penalty,  and  the  defendant,  on  making  the  plaintiff 
whole,  should  be  relieved  from  it. 

But  while  jurors  have  thus  been  permitted  in  certain  cases  to 
mitigate  damages  below  the  literal  stipulation  of  the  parties,  they 
have  never  been  permitted,  when  no  actual  damages  have  been 
shown  or  can  be  implied  in  a  matter  resting  in  contract,  to  guess  at 
damages,  beyond  a  nominal  sum. 

In  the  cases  where  the  jury  were  permitted  to  reduce  the  dam- 
ages to  a  reasonable  sum,  they  had  sufficient  data  by  which  they 
could  form  their  judgment.  Instead  of  giving  1,000^.,  for  finding 
the  defendant's  owl,  they  could  inquire  into  the  time  and  expense 
spent  in  the  search,  and  give  that,  as  they  gave  the  value  of  the 
horse  in  the  other  case.  But  in  making  their  estimate  in  the  oppo- 
site direction  in  this  case,  they  had  no  data,  beyond  nominal  damages. 
Why  should  they  give,  in  an  action  on  contract,  more  than  that, 
when  no  actual  damages  were  sustained  ?  It  was  not  a  case  in  which 
the  rules  of  law  allow  exemplary  damages,  nor  where  damages  may 
be  presumed,  as  in  libel,  slander,  trespass  and  the  like. 

The  jury  had  no  right  to  presume  that  the  plaintiff  could  have 
made  a  speculation  by  disposing  of  his  right  to  any  other  person. 
The  damages  arising  from  such  a  source  are  too  remote.  They  rest 
wholly  in  conjecture.     The  judgment  should  be  affirmed. 

Taggart,  J.,  concurred  in  the  conclusions  arrived  at  by  Judge 
Willaed. 

Judgment  reversed  and  new  trial  ordered. 


Carrier's  Delay  ;    Anticipated  Profits. 


[1854.]  Hadlet  v.  Baxendale  (9  Exch.  341). 

Where  two  parties  have  made  a  contract,  which  one  of  them  has  broken,  the 

which  the  other  party  ought  to  receive  in  respect  to  such  breach  of  contract  should 
be  such  as  may  fairly  and  reasonably  be  considered  either  arising  naturally— i.  e., 
according  to  the  usual  course  of  things— from  such  breach  of  contract  itself,  or  such 
as  may  reasonably  be  supposed  to  have  been  in  the  contemplation  of  both  parties 
at  the  time  they  made  the  contract,  as  the  probable  result  of  the  breach  of  it. 

Where  the  plaintiffs,  the  owners  of  a  flour  mill,  sent  a  broken  iron  shaft  to  an  office  of  the 
defendants,  who  were  common  carriers,  to  be  conveyed  by  them,  and  the  defendants' 


HADLEY   v.   BAXENDALE.  127 

clerk,  who  attended  at  the  office,  was  told  that  the  mill  was  stopped,  that  the  shaft 
must  be  delivered  immediately,  and  that  a  special  entry,  if  necessary,  must  be  made 
to  hasten  its  delivery;  and  the  delivery  of  the  broken  shaft  to  the  consignee,  to  whom 
it  had  been  sent  by  the  plaintiffs  as  a  pattern,  by  which  to  make  a  new  shaft,  was 
delayed  for  an  unreasonable  time,  in  consequence  of  which,  the  plaintiffs  did  not 
receive  the  new  shaft  for  some  days  after  the  time  they  ought  to  have  received  it,  and 
they  were  consequently  unable  to  work  their  mill  from  want  of  the  new  shaft,  and 
thereby  incurred  a  loss  of  profits :  Held,  that,  under  the  circumstances,  such  loss 
could  not  be  recovered  in  an  action  against  the  defendants  as  common  carriers. 

The  first  count  of  the  declaration  stated  that,  before  and  at  the 
time  of  the  making  by  the  defendants  of  the  promises  hereinafter 
mentioned,  the  plaintiffs  carried  on  the  business  of  millers  and  meal- 
men  in  copartnership,  and  were  proprietors  and  occupiers  of  the  City 
Steam  Mills,  in  the  city  of  Gloucester,  and  were  possessed  of  a  steam 
engine,  by  means  of  which  they  worked  the  said  mills,  and  therein 
cleaned  corn,  and  ground  the  same  into  meal,  and  dressed  the  same 
into  flour,  sharps,  and  bran,  and  a  certain  portion  of  the  said  steam 
engine,  to  wit,  the  crank  shaft  of  the  said  steam  engine,  was  broken 
and  out  of  repair,  whereby  the  said  steam  engine  was  prevented  from 
working,  and  the  plaintiffs  were  desirous  of  having  a  new  crank  shaft 
made  for  the  said  mill,  and  had  ordered  the  same  of  certain  persons 
trading  under  the  name  of  W.  Joyce  &  Co.,  at  Greenwich,  in  the 
county  of  Kent,  who  had  contracted  to  make  the  said  new  shaft  for 
the  plaintiffs  ;  but  before  they  could  complete  the  said  new  shaft,  it 
was  necessary  that  the  said  broken  shaft  should  be  forwarded  to  their 
works  at  Greenwich,  in  order  that  the  said  new  shaft  might  be  made 
so  as  to  fit  the  other  parts  of  the  said  engine  which  were  not  injured, 
and  so  that  it  might  be  substituted  for  the  said  broken  shaft ;  and 
the  plaintiffs  were  desirous  of  sending  the  said  broken  shaft  to  the 
said  W.  Joyce  &  Co.  for  the  purpose  aforesaid  ;  and  the  defendants, 
before  and  at  the  time  of  the  making  of  the  said  promises,  were  com- 
mon carriers  of  goods  and  chattels  for  hire  from  Gloucester  to  Green- 
wich, and  carried  on  such  business  of  common  carriers  under  the 
name  of  "  Pickf ord  &  Co.  ; "  and  the  plaintiffs,  at  the  request  of  the 
defendants,  delivered  to  them  as  such  carriers  the  said  broken  shaft, 
to  be  conveyed  by  the  defendants  as  such  carriers  from  Gloucester 
to  the  said  W.  Joyce  &  Co.,  at  Greenwich,  and  there  to  be  delivered 
for  the  plaintiffs  on  the  second  day  after  the  day  of  such  delivery 
for  reward  to  the  defendants  ;  and  in  consideration  thereof  the  de- 
fendants then  promised  the  plaintiffs  to  convey  the  said  broken  shaft 
from  Gloucester  to  Greenwich,  and  there  on  the  said  second  day  to 
deliver  the  same  to  the  said  W.  Joyce  &  Co.  for  the  plaintiffs.    And 


1  28  CARRIERS. 

although  such  second  day  elapsed  before  the  commencement  of  this 
suit,  yet  the  defendants  did  not  nor  would  deliver  the  said  broken 
shaft  at  Greenwich  on  the  said  second  day,  or  to  the  said  W.  Joyce 
&  Co.  on  the  said  second  day,  but  wholly  neglected  and  refused  so 
to  do  for  the  space  of  seven  days  after  the  said  shaft  was  so  delivered 
to  them  as  aforesaid. 

The  second  count  stated  that,  the  defendants  being  such  carriers 
as  aforesaid,  the  plaintiffs,  at  the  request  of  the  defendants,  caused 
to  be  delivered  to  them  as  such  carriers  the  said  broken  shaft,  to  be 
conveyed  by  the  defendants  from  Gloucester  aforesaid  to  the  said  W. 
Joyce  &  Co.,  at  Greenwich,  and  there  to  be  delivered  by  the  defend- 
ants for  the  plaintiffs,  within  a  reasonable  time  in  that  behalf,  for  re- 
ward to  the  defendants ;  and  in  consideration  of  the  premises  in  this 
count  mentioned,  the  defendants  promised  the  plaintiffs  to  use  due 
and  proper  care  and  diligence  in  and  about  the  carrying  and  convey- 
ing the  said  broken  shaft  from  Gloucester  aforesaid  to  the  said  W. 
Joyce  &  Co.,  at  Greenwich,  and  there  delivering  the  same  for  the 
plaintiffs  in  a  reasonable  time  then  following  for  the  carriage,  convey- 
ance, and  delivery  of  the  said  broken  shaft  as  aforesaid ;  and  although 
such  reasonable  time  elapsed  long  before  the  commencement  of  this 
suit,  yet  the  defendants  did  not  nor  would  use  due  or  proper  care 
or  diligence  in  or  about  the  carrying  or  conveying  or  delivering  the 
said  broken  shaft  as  aforesaid,  within  such  reasonable  time  as  afore- 
said, but  wholly  neglected  and  refused  so  to  do  ;  and  by  reason  of 
the  carelessness,  negligence,  and  improper  conduct  of  the  defendants, 
the  said  broken  shaft  was  not  delivered  for  the  plaintiffs  to  the  said 
W.  Joyce  &  Co.,  or  at  Greenwich,  until  the  expiration  of  a  long  and 
unreasonable  time  after  the  defendants  received  the  same  as  afore- 
said, and  after  the  time  when  the  same  should  have  been  delivered 
for  the  plaintiffs  ;  and  by  reason  of  the  several  premises,  the  com- 
pleting of  the  said  new  shaft  was  delayed  for  five  days,  and  the 
plaintiffs  were  prevented  from  working  their  said  steam  mills,  and 
from  cleaning  corn,  and  grinding  the  same  into  meal,  and  dressing 
the  meal  into  flour,  sharps,  or  bran,  and  from  carrying  on  their  said 
business  as  millers  and  mealmen  for  the  space  of  five  days  beyond 
the  time  that  they  otherwise  would  have  been  prevented  from  so 
doing,  and  they  thereby  were  unable  to  supply  many  of  their  custom- 
ers with  flour,  sharps,  and  bran  during  that  period,  and  were  obliged 
to  buy  flour  to  supply  some  of  their  other  customers,  and  lost  the 
means  and  opportunity  of  selling  flour,  sharps,  and  bran,  and  were 
deprived  of  gains  and  profits  which  otherwise  would  have  accrued  to 
them,  and  were  unable  to  employ  their  workmen,  to  whom  they  were 


HADLEY   v.  BAXENDALE.  129 

■compelled  to  pay  wages  during  that  period,  and  were  otherwise  in- 
jured, and  the  plaintiffs  claim  300/. 

The  defendants  pleaded  non  assumpserunt  to  the  first  count;  and 
to  the  second,  payment  of  251.  into  court  in  satisfaction  of  the  plaint- 
iffs' claim  under  that  count.  The  plaintiffs  entered  a  nolle  prosequi 
as  to  the  first  count ;  and  as  to  the  second  plea,  they  replied  that  the 
sum  paid  into  court  was  not  enough  to  satisfy  the  plaintiffs'  claim  in 
respect  thereof  ;  upon  which  replication  issue  was  joined. 

At  the  trial  before  Ckompton,  J.,  at  the  last  Gloucester  Assizes, 
it  appeared  that  the  plaintiffs  carried  on  an  extensive  business  as 
millers  at  Gloucester  ;  and  that,  on  the  11th  of  May,  their  mill  was 
stopped  by  a  breakage  of  the  crank  shaft  by  which  their  mill  was 
worked.  The  steam  engine  was  manufactured  by  Messrs.  Joyce  & 
Co.,  the  engineers,  at  Greenwich,  and  it  became  necessary  to  send 
the  shaft  as  a  pattern  for  a  new  one  to  Greenwich.  The  fracture 
was  discovered  on  the  12th,  and  on  the  13th  the  plaintiffs  sent  one 
of  their  servants  to  the  office  of  the  defendants,  who  are  the  well 
known  carriers  trading  under  the  name  of  Pickford  &  Co.,  for  the 
purpose  of  having  the  shaft  carried  to  Greenwich.  The  plaintiffs' 
servant  told  the  clerk  that  the  mill  was  stopped,  and  that  the  shaft 
must  be  sent  immediately  ;  and  in  answer  to  the  inquiry  when  the 
shaft  would  be  taken,  the  answer  was,  that  if  it  was  sent  up  by  twelve 
o'clock  any  day,  it  would  be  delivered  at  Greenwich  on  the  following 
day.  On  the  following  day  the  shaft  was  taken  by  the  defendants, 
before  noon,  for  the  purpose  of  being  conveyed  to  Greenwich,  and 
the  sum  of  21.  4s.  was  paid  for  its  carriage  for  the  whole  distance ;  at 
the  same  time  the  defendants'  clerk  was  told  that  a  special  entry, 
if  required,  should  be  made  to  hasten  its  delivery.  The  delivery  of 
the  shaft  at  Greenwich  was  delayed  by  some  neglect ;  and  the  conse- 
quence was  that  the  plaintiffs  did  not  receive  the  new  shaft  for  seve- 
ral days  after  they  would  otherwise  have  done,  and  the  working  of 
their  mill  was  thereby  delayed,  and  they  thereby  lost  the  profits  they 
would  otherwise  have  received. 

On  the  part  of  the  defendants,  it  was  objected  that  these  damages 
were  too  remote,  and  that  the  defendants  were  not  liable  with  re- 
spect to  them.  The  learned  judge  left  the  case  generally  to  the 
jury,  who  found  a  verdict  with  251.  damages  beyond  the  amount 
paid  into  court. 

Whateley,  in  last  Michaelmas  Term,  obtained  a  rule  nisi  for  a 
new  trial,  on  the  ground  of  misdirection. 

Keating  and  Dowdeswell  (Feb.  1)  showed  cause. — The  plaintiffs 
are  entitled  to  the  amount  awarded  by  the  jury  as  damages.     These 
9 


130  CARRIERS. 

damages  are  not  too  remote,  for  they  are  not  only  the  natural  and 
necessary  consequence  of  the  defendants'  default,  but  they  are  the 
only  loss  which  the  plaintiffs  have  actually  sustained.  The  principle 
upon  which  damages  are  assessed  is  founded  upon  that  of  rendering 
compensation  to  the  injured  party.  This  important  subject  is  ably 
treated  in  Sedgwick  on  the  Measure  of  Damages.  And  this  partic- 
ular branch  of  it  is  discussed  in  the  third  chapter,  where,  after 
pointing  out  the  distinction  between  the  civil  and  the  French  law, 
he  says  (page  64)  :  "  It  is  sometimes  said,  in  regard  to  contracts,  that 
the  defendant  shall  be  held  liable  for  those  damages  only  which  both 
parties  may  fairly  be  supposed  to  have  at  the  time  contemplated 
as  likely  to  result  from  the  nature  of  the  agreement,  and  this  ap- 
pears to  be  the  rule  adopted  by  the  writers  upon  the  civil  law."  In 
a  subsequent  passage  he  says :  "  In  cases  of  fraud,  the  civil  law  made 
a  broad  distinction  (page  66) ; "  and  he  adds,  that  "  in  such  cases 
the  debtor  was  liable  for  all  the  consequences."  It  is  difficult,  how- 
ever, to  see  what  the  ground  of  such  principle  is,  and  how  the  ingre- 
dient of  fraud  can  affect  the  question.  For  instance,  if  the  defend- 
ants had  maliciously  and  fraudulently  kept  the  shaft,  it  is  not  easy 
to  see  why  they  should  have  been  liable  for  these  damages,  if  they 
are  not  to  be  held  so  where  the  delay  is  occasioned  by  their  negli- 
gence only.  In  speaking  of  the  rule  respecting  the  breach  of  a  con- 
tract to  transport  goods  to  a  particular  place,  and  in  actions  brought 
on  agreements  for  the  sale  and  delivery  of  chattels,  the  learned 
author  lays  it  down,  that,  "  In  the  former  case,  the  difference  in 
value  between  the  price  at  the  point  where  the  goods  are,  and  the 
place  where  they  were  to  be  delivered,  is  taken  as  the  measure  of 
damages,  which,  in  fact,  amounts  to  an  allowance  of  profits ;  and  in 
the  latter  case,  a  similar  result  is  had  by  the  application  of  the 
rule,  which  gives  the  vendee  the  benefit  of  the  rise  of  the  market 
price  (page  80)."  The  several  cases,  English  as  well  as  American, 
are  there  collected  and  reviewed.  [Parke,  B. — The  sensible  rule 
appears  to  be  that  which  has  been  laid  down  in  France,  and  which  is 
declared  in  their  code  (Code  Civil,  liv.  iii,  tit.  iii,  ss.  1149, 1150, 1151), 
and  which  is  thus  translated  in  Sedgwick  (page  67) :  "  The  damages 
due  to  the  creditor  consist  in  general  of  the  loss  that  he  has  sus- 
tained, and  the  profit  which  he  has  been  prevented  from  acquiring, 
subject  to  the  modifications  hereinafter  contained.  The  debtor  is 
only  liable  for  the  damages  foreseen,  or  which  might  have  been  fore- 
seen, at  the  time  of  the  execution  of  the  contract,  when  it  is  not 
owing  to  his  fraud  that  the  agreement  has  been  violated.  Even  in 
the  case  of  non-performance  of  the  contract,  resulting  from  the 


HADLEY  v.   BAXENDALE.  13  t 

fraud  of  the  debtor,  the  damages  only  comprise  so  much  of  the  loss 
sustained  by  the  creditor,  and  so  much  of  the  profit  which  he  has 
been  prevented  from  acquiring,  as  directly  and  immediately  results 
from  the  non-performance  of  the  contract."]  If  that  rule  is  to  be 
adopted,  there  was  ample  evidence  in  the  present  case  of  the  defend- 
ants' knowledge  of  such  a  state  of  things  as  would  necessarily  result 
in  the  damage  the  plaintiffs  suffered  through  the  defendants'  de- 
fault. The  authorities  are  in  the  plaintiffs'  favor  upon  the  general 
ground.  In  Nurse  v.  Barns  (1  Sir  T.  Raym.  77),  which  was  an  ac- 
tion for  the  breach  of  an  agreement  for  the  letting  of  certain  iron 
mills,  the  plaintiff  was  held  entitled  to  a  sum  of  500£.,  awarded  by 
reason  of  loss  of  stock  laid  in,  although  he  had  only  paid  101.  by  way 
of  consideration.  In  Borradaile  v.  Brunton  (8  Taunt.  535  ;  2  B.  Moo. 
582  ;  E.  C.  L.  R.  vol.  4),  which  was  an  action  for  the  breach  of  the 
warranty  of  a  chain  cable,  that  it  should  last  two  years  as  a  substitute 
for  a  rope  cable  of  sixteen  inches,  the  plaintiff  was  held  entitled  to 
recover  for  the  loss  of  the  anchor,  which  was  occasioned  by  the 
breaking  of  the  cable  within  the  specified  time.  [Alderson,  B. — 
Why  should  not  the  defendant  have  been  liable  for  the  loss  of  the 
ship?  Parke,  B. — Sedgwick  doubts  the  correctness  of  that  report.* 
Martin,  B. — Take  the  case  of  the  non-delivery  by  a  carrier  of  a  deli- 
cate piece  of  machinery,  whereby  the  whole  of  an  extensive  mill  is 
thrown  out  of  work  for  a  considerable  time  ;  if  the  carrier  is  to  be 
liable  for  the  loss  in  that  case,  he  might  incur  damages  to  the  extent 
of  10,000?.  Parke,  B.,  referred  to  Everard  v.  Hopkins  (2  Bulst. 
332)].  These  extreme  cases,  and  the  difficulty  which  consequently 
exists  in  the  estimation  of  the  true  amount  of  damages,  supports 
the  view  for  which  the  plaintiffs  contend,  that  the  question  is  prop- 
erly for  the  decision  of  a  jury,  and  therefore  that  this  matter  could 
not  properly  have  been  withdrawn  from  their  consideration.  In 
Ingram  v.  Lawson  (6  Bing.  K  C.  212 ;  E.  C.  L.  R.  vol.  37),  the  true 
principle  was  acted  upon.  That  was  an  action  for  a  libel  upon  the 
plaintiff,  who  was  the  owner  and  master  of  a  ship,  which  he  adver- 
tised to  take  passengers  to  the  East  Indies  ;  and  the  libel  imputed 
that  the  vessel  was  not  seaworthy,  and  that  Jews  had  purchased  her 
to  take  out  convicts.  The  court  held  that  evidence  showing  that 
the  plaintiff's  profits  after  the  publication  of  the  libel  were  1,5001. 
below  the  usual  average,  was  admissible,  to  enable  the  jury  to  form 
an  opinion  as  to  the  nature  of  the  plaintiff's  business,  and  of  his  gen- 

*  The  learned  judge  has  frequently  observed  of  late  that  the  8th  Taunton  is  of  hut 
doubtful  authority,  as  the  cases  were  not  reported  by  Mr.  Taunton  himself. 


132  CARRIERS. 

eral  rate  of  profit.  Here,  also,  the  plaintiffs  have  not  sustained  any 
loss  beyond  that  which  was  submitted  to  the  jury.  Bodley  v.  Key- 
nolds  (8  Q.  B.  779  ;  E.  C.  L.  K.  vol.  55),  and  Kettle  v.  Hunt  (Bull. 
N.  P.  77),  are  similar  in  principle.  In  the  latter,  it  was  held  that 
the  loss  of  the  benefit  of  trade,  which  a  man  suffers  by  the  detention 
of  his  tools,  is  recoverable  as  special  damage.  [Parke,  B. — Suppose, 
in  the  present  case,  that  the  shaft  had  been  lost,  what  would  have 
been  the  damage  to  which  the  plaintiffs  would  have  been  entitled  ?] 
The  loss  they  had  sustained  during  the  time  they  were  so  deprived 
of  their  shaft,  or  until  they  could  have  obtained  a  new  one.  In 
Black  v.  Baxendale  (1  Exch.  410),  by  reason  of  the  defendant's  omis- 
sion to  deliver  the  goods  within  a  reasonable  time  at  Bedford,  the 
plaintiff's  agent,  who  had  been  sent  there  to  meet  the  goods,  was  put 
to  certain  additional  expenses,  and  this  court  held  that  such  expenses 
might  be  given  by  the  jury  as  damages.  In  Brant  v.  Bowlby  (2  B. 
<fe  Ad.  932 ;  E.  C.  L.  It.  vol.  22),  which  was  an  action  of  assumpsit 
against  the  defendants,  as  owners  of  a  certain  vessel,  for  not  deliver- 
ing a  cargo  of  wheat  shipped  to  the  plaintiffs,  the  cargo  reached  the 
port  of  discharge,  but  was  not  delivered ;  the  price  of  the  cargo  at 
the  time  it  reached  the  port  of  destination  was  held  to  be  the  true 
rule  of  damages.  "  As  between  the  parties  in  this  cause,"  said 
Parke,  B.,  "  the  plaintiffs  are  entitled  to  be  put  in  the  same  situation 
as  they  would  have  been  in  if  the  cargo  had  been  delivered  to  their 
order  at  the  time  when  it  was  delivered  to  the  wrong  party ;  and  the 
sum  it  would  have  fetched  at  that  time  is  the  amount  of  the  loss  sus- 
tained by  the  non-performance  of  the  defendant's  contract."  The 
recent  decision  of  this  court,  in  "Waters  v.  Towers  (8  Exch.  401), 
seems  to  be  strongly  in  the  plaintiffs'  favor.  The  defendants  there 
had  agreed  to  fit  up  the  plaintiffs'  mill  within  a  reasonable  time,  but 
had  not  completed  their  contract  within  such  time ;  and  it  was  held 
that  the  plaintiffs  were  entitled  to  recover,  by  way  of  damages,  the 
loss  of  profit  upon  a  contract  they  had  entered  into  with  third  par- 
ties, and  which  they  were  unable  to  fulfill  by  reason  of  the  defend- 
ants' breach  of  contract.  [Parke,  B. — The  defendants  there  must 
of  necessity  have  known  that  the  consequence  of  their  not  complet- 
ing their  contract  would  be  to  stop  the  working  of  the  mill.  But 
how  could  the  defendants  here  know  that  any  such  result  would 
follow  ?]  There  was  ample  evidence  that  the  defendants  knew  the 
purpose  for  which  this  shaft  was  sent,  and  that  the  result  of  its  non- 
delivery in  due  time  would  be  the  stoppage  of  the  mill ;  for  the  de- 
fendants' agent,  at  their  place  of  business,  was  told  that  the  mill  was 
then  stopped,  that  the  shaft  must  be  delivered  immediately,  and  that 


HADLEY   v.  BAXENDALE.  133 

if  a  special  entry  was  necessary  to  hasten  its  delivery,  suclran  entry 
should  be  made.  The  defendants  must,  therefore,  be  held  to  have 
contemplated  at  the  time  what  in  fact  did  follow,  as  the  necessary 
and  natural  result  of  their  wrongful  act.  They  also  cited  Ward  v. 
Smith  (11  Price,  19) ;  and  Parke,  B.,  referred  to  Levy  v.  Langridge 
(4  M.  <fe  W.  337). 

Whateleu,  Willes,  and  Phipson,  in  support  of  the  rule  (Feb.  2). — 
It  has  been  contended,  on  the  part  of  the  plaintiffs,  that  the  dam- 
ages found  by  the  jury  are  a  matter  fit  for  their  consideration  ;  but 
still  the  question  remains,  in  what  way  ought  the  jury  to  have  been 
directed  \  It  has  been  also  urged,  that,  in  awarding  damages,  the 
law  gives  compensation  to  the  injured  individual.  But  it  is  clear 
that  complete  compensation  is  not  to  be  awarded ;  for  instance,  the 
non-payment  of  a  bill  of  exchange  might  lead  to  the  utter  ruin  of 
the  holder,  and  yet  such  damage  could  not  be  considered  as  neces- 
sarily resulting  from  the  breach  of  contract,  so  as  to  entitle  the  party 
aggrieved  to  recover  in  respect  of  it.  Take  the  case  of  the  breach  of 
a  contract  to  supply  a  rick  cloth,  whereby  and  in  consequence  of  bad 
weather  the  hay,  being  unprotected,  is  spoiled,  that  damage  would 
not  be  recoverable.  Many  similar  cases  might  be  added.  The  true 
principle  to  be  deduced  from  the  authorities  upon  this  subject  is  that 
which  is  embodied  in  the  maxim  :  "  In  jure  non  remota  causa  sed 
proxima  spectatwrP  Sedgwick  says  (page  38) :  "  In  regard  to  the 
quantum  of  damages,  instead  of  adhering  to  the  term  compensation, 
it  would  be  far  more  accurate  to  say,  in  the  language  of  Domat, 
which  we  have  cited  above,  '  that  the  object  is  to  discriminate  be- 
tween that  portion  of  the  loss  which  must  be  borne  by  the  offending 
party  and  that  which  must  be  borne  by  the  sufferer.'  The  law,  in 
fact,  aims  not  at  the  satisfaction,  but  at  a  division  of  the  loss."  And 
the  learned  author  also  cites  the  following  passage  from  Broom's 
Legal  Maxims :  "  Every  defendant,"  says  Mr.  Broom,  "  against  whom 
an  action  is  brought,  experiences  some  injury  or  inconvenience  be- 
yond what  the  costs  will  compensate  him  for  "  (Broom's  Legal  Max- 
ims, p.  95  ;  Davies  v.  Jenkins,  11  M.  &  W.  755).  Again,  at  p.  78, 
after  referring  to  the  case  of  Flureau  v.  Thornhill  (2  W.  Blac.  1078), 
he  says :  "  Both  the  English  and  American  courts  have  generally  ad- 
hered to  this  denial  of  profits  as  any  part  of  the  damages  to  be  com- 
pensated, and  that  whether  in  cases  of  contract  or  of  tort.  So,  in  a 
case  of  illegal  capture,  Mr.  Justice  Story  rejected  the  item  of  profits 
on  the  voyage,  and  held  this  general  language  :  '  Independent,  how- 
ever, of  all  "authority,  I  am  satisfied,  upon  principle,  that  an  allow- 
ance of  damages  upon  the  basis  of  a  calculation  of  profits  is  inadmis- 


134:  CARRIERS. 

fiible.  The  rale  would  be  in  the  highest  degree  unfavorable  to  the 
interests  of  the  community.  The  subject  would  be  involved  in  utter 
uncertainty.  The  calculation  would  proceed  upon  contingencies,  and 
would  require  a  knowledge  of  foreign  markets  to  an  exactness,  in 
point  of  time  and  value,  which  would  sometimes  present  embarrass- 
ing obstacles ;  much  would  depend  upon  the  length  of  the  voyage 
and  the  season  of  arrival,  much  upon  the  vigilance  and  activity  of 
the  master,  and  much  upon  the  momentary  demand.  After  all,  it 
would  be  a  calculation  upon  conjectures,  and  not  upon  facts ;  such  a 
Tule,  therefore,  has  been  rejected  by  courts  of  law  in  ordinary  cases, 
and  instead  of  deciding  upon  the  gains  or  losses  of  parties  im  partic- 
ular cases,  a  uniform  interest  has  been  applied  as  the  measure  of 
damages  for  the  detention  of  property.' "  There  is  much  force  in 
that  admirably  constructed  passage.  We  ought  to  pay  all  due  hom- 
age in  this  country  to  the  decisions  of  the  American  courts  upon  this 
important  subject,  to  which  they  appear  to  have  given  much  careful 
consideration.  The  damages  here  are  too  remote.  Several  of  the 
cases  which  were  principally  relied  upon  by  the  plaintiffs  are  distin- 
guishable. In  Waters  v.  Towers  (1  Exch.  401),  there  was  a  special 
contract  to  do  the  work  in  a  particular  time,  and  the  damage  occa- 
sioned by  the  non-completion  of  the  contract  was  that  to  which  the 
plaintiffs  were  held  to  be  entitled.  In  Borradaile  v.  Brunton  (8 
Taunt.  535 ;  E.  C.  L.  R.  vol.  4),  there  was  a  direct  engagement  that 
the  cable  should  hold  the  anchor.  So,  in  the  case  of  taking  away  a 
workman's  tools,  the  natural  and  necessary  consequence  is  the  loss  of 
employment  (Bodley  v.  Reynolds,  8  Q.  B.  779 ;  E.  C.  L.  R.  vol.  55). 
The  following  cases  may  be  referred  to  as  decisions  upon  the  princi- 
ple within  which  the  defendants  contend  that  the  present  case  falls : 
Jones  v.  Gooday  (8  M.  &  W.  146) ;  Walton  v.  Eothergill  (7  Car.  & 
P.  392 ;  E.  C.  L.  R.  vol.  32) ;  Boyce  v.  Bayliffe  (1  Camp.  58) ;  and 
Archer  v.  Williams  (2  C.  &  K.  26 ;  E.  C.  L.  R.  vol.  61).  The  rale, 
therefore,  that  the  immediate  cause  is  to  be  regarded  in  considering 
the  loss,  is  applicable  here.  There  was  no  special  contract  between 
these  parties.  A  carrier  has  a  certain  duty  cast  upon  him  by  law, 
and  that  duty  is  not  to  be  enlarged  to  an  indefinite  extent  in  the  ab- 
sence of  a  special  contract,  or  of  fraud  or  malice.  The  maxim 
"  dolus  circuitu  non  purgatur  "  does  not  apply.  The  question  as 
to  how  far  liability  may  be  affected  by  reason  of  malice  forming  one 
of  the  elements  to  be  taken  into  consideration  was  treated  of  by  the 
Court  of  Queen's  Bench,  in  Lumley  v.  Gye  (2  E.  •&  B.  216  ;  E.  C. 
L.  R.  vol.  75).  Here  the  declaration  is  founded  upon  the  defend- 
ants' duty  as  common  carriers,  and  indeed  there  is  no  pretense  for 
saying  that  they  entered  into  a  special  contract  to  bear  all  the  conse- 


HADLET  y.  BAXENDALE.  135 

quences  of  the  non-delivery  of  the  article  in  question.  They  were 
merely  bound  to  carry  it  safely,  and  to  deliver  it  within  a  reasonable 
time.  The  duty  of  the  clerk,  who  was  in  attendance  at  the  defend- 
ants' office,  was  to  enter  the  article,  and  to  take  the  amount  of  the 
carriage ;  but  a  mere  notice  to  him,  such  as  was  here  given,  could 
not  make  the  defendants,  as  carriers,  liable  as  upon  a  special  contract. 
Such  matters,  therefore,  must  be  rejected  from  the  consideration  of 
the  question.  If  carriers  are  to  be  liable  in  such  a  case  as  this,  the 
exercise  of  a  sound  judgment  would  not  suffice,  but  they  ought  to  be 
gifted  also  with  a  spirit  of  prophecy.  "  I  have  always  understood," 
said  PaTteson,  J.,  in  Kelly  v.  Partington  (5  B.  &  Ad.  651 ;  E.  C. 
L.  P.  vol.  27),  "that  the  special  damage  must  be  the  natural  result  of 
the  thing  done."  That  sentence  presents  the  true  test.  The  Court 
of  Queen's  Bench  acted  upon  that  rule  in  Foxall  v.  Barnett  (2  E.  & 
B.  928  ;  E.  C.  L.  P.  vol.  75).  This,  therefore,  is  a  question  of  law, 
and  the  jury  ought  to  have  been  told  that  these  damages  were  too 
remote  ;  and  that,  in  the  absence  of  the  proof  of  any  other  damage, 
the  plaintiffs  were  entitled  to  nominal  damages  only  (Tindall  v.  Bell, 
11  M.  &  W.  232).  Siordet  v.  Hall  (4  Bing.  607 ;  E.  C.  L.  P.  vols.  13, 
15),  and  De  Yaux  v.  Salvador  (4  A.  &  E.  420  ;  E.  C.  L.  P.  vol.  31), 
are  instances  of  cases  where  the  courts  appear  to  have  gone  into  the 
opposite  extremes — in  the  one  case,  of  unduly  favoring  the  carrier ; 
in  the  other,  of  holding  them  liable  for  results  which  appear  too  re- 
mote. If  the  defendants  should  be  held  responsible  for  the  damages 
awarded  by  the  jury,  they  would  be  in  a  better  position  if  they  con- 
fined their  business  to  the  conveyance  of  gold.  They  cannot  be 
responsible  for  results  which  at  the  time  the  goods  are  delivered 
for  carriage  are  beyond  human  foresight.  Suppose  a  manufac- 
turer were  to  contract  with  a  coal  merchant  or  mine  owner  for 
the  delivery  of  a  boat  load  of  coals,  no  intimation  being  given  that 
the  coals  were  required  for  immediate  use,  the  vendor  in  that  case 
would  not  be  liable  for  the  stoppage  of  the  vendee's  business  for 
want  of  the  article  which  he  had  failed  to  deliver ;  for  the  vendor 
has  no  knowledge  that  the  goods  are  not  to  go  to  the  vendee's  gen- 
eral stock.  Where  the  contracting  party  is  shown  to  be  acquainted 
with  all  the  consequences  that  must  of  necessity  follow  from  a  breach 
on  his  part  of  the  contract,  it  may  be  reasonable  to  say  that  he  takes 
the  risk  of  such  consequences.  If,  as  between  vendor  and  vendee, 
this  species  of  liability  has  no  existence,  a  fortiori  the  carrier  is  not 
to  be  burdened  with  it.  In  cases  of  personal  injury  to  passengers, 
the  damage  to  which  the  sufferer  has  been  held  entitled  is  the  direct 
and  immediate  consequence  of  the  wrongful  act. 
Cur.  adv.  vult. 


136  CARRIERS. 

The  judgment  of  the  court  was  now  delivered  by 

Alderson,  B. — We  think  that  there  ought  to  be  a  new  trial  in 
this  case ;  but,  in  so  doing,  we  deem  it  to  be  expedient  and  necessary 
to  state  explicitly  the  rule  which  the  judge,  at  the  next  trial,  ought, 
in  our  opinion,  to  direct  the  jury  to  be  governed  by  when  they  esti- 
mate the  damages. 

It  is,  indeed,  of  the  last  importance  that  we  should  do  this ;  for, 
if  the  jury  are  left  without  any  definite  rule  to  guide  them,  it  will, 
in  such  eases  as  these,  manifestly  lead  to  the  greatest  injustice.  The 
courts  have  done  this  on  several  occasions ;  and,  in  Blake  v.  Midland 
Railway  Company  (21  L.  J.  Q.  B.  237),  the  court  granted  a  new  trial 
on  this  very  ground,  that  the  rule  had  not  been  definitely  laid  down 
to  the  jury  by  the  learned  judge  at  Nisi  Prius. 

"  There  are  certain  established  rules,"  this  court  says,  in  Alder 
v.  Keighley  (15  M.  &  W.  117),  "  according  to  which  the  jury  ought 
to  find."  And  the  court,  in  that  case,  adds :  "  and  here  there  is  a 
clear  rule,  that  the  amount  which  would  have  been  received  if  the 
contract  had  been  kept,  is  the  measure  of  damages  if  the  contract  is 
broken." 

Now  we  think  the  proper  rule  in  such  a  case  as  the  present  is 
this  :  Where  two  parties  have  made  a  contract  which  one  of  them 
has  broken,  the  damages  which  the  other  party  ought  to  receive  in 
respect  of  such  breach  of  contract  should  be  such  as  may  fairly  and 
reasonably  be  considered  either  arising  naturally,  i.  e.,  according  to  the 
usual  course  of  things,  from  such  breach  of  contract  itself,  or  such 
as  may  reasonably  be  supposed  to  have  been  in  the  contemplation 
of  both  parties,  at  the  time  they  made  the  contract,  as  the  probable 
result  of  the  breach  of  it.  Now,  if  the  special  circumstances  under 
which  the  contract  was  actually  made  were  communicated  by  the 
plaintiffs  to  the  defendants,  and  thus  known  to  both  parties,  the 
damages  resulting  from  the  breach  of  such  a  contract,  which  they 
would  reasonably  contemplate,  would  be  the  amount  of  injury  which 
would  ordinarily  follow  from  a  breach  of  contract  under  these  spe- 
cial circumstances  so  known  and  communicated.  But,  on  the  other 
hand,  if  these  special  circumstances  were  wholly  unknown  to  the 
party  breaking  the  contract,  he,  at  the  most,  could  only  be  supposed 
to  have  had  in  his  contemplation  the  amount  of  injury  which  would 
arise  generally,  and  in  the  great  multitude  of  cases  not  affected  by 
any  special  circumstances,  from  such  a  breach  of  contract,  t  For,  had 
the  special  circumstances  been  known,  the  parties  might  have  spe- 
cially provided  for  the  breach  of  contract  by  special  terms  as  to  the 
damages  in  that  case ;  and  of  this  advantage  it  would  be  very  unjust 


HADLEY   t.  BAXENDALE.  137 

to  deprive  them.  Now,  the  above  principles  are  those  by  which  we 
think  the  jury  ought  to  be  guided  in  estimating  the  damages  arising 
out  of  any  breach  of  contract.  It  is  said  that  other  cases,  such  as 
breaches  of  contract  in  the  non-payment  of  money,  or  in  the  not 
making  a  good  title  to  land,  are  to  be  treated  as  exceptions  from 
this,  and  as  governed  by  a  conventional  rule.  But  as,  in  such  cases, 
both  parties  must  be  supposed  to  be  cognizant  of  that  well-known 
rule,  these  cases  may,  we  think,  more  properly  be  classed  under 
the  rule  above  enunciated  as  to  cases  under  known  special  circum- 
stances, because  there  both  parties  may  reasonably  be  presumed  to 
contemplate  the  estimation  of  the  amount  of  damages  according  to 
the  conventional  rule.  Now,  in  the  present  case,  if  we  are  to  apply 
the  principles  above  laid  down,  we  find  that  the  only  circumstances 
here  communicated  by  the  plaintiffs  to  the  defendants  at  the  time 
the  contract  was  made,  were,  that  the  article  to  be  carried  was  the 
broken  shaft  of  a  mill,  and  that  the  plaintiffs  were  the  millers  of  that 
mill.  But  how  do  these  circumstances  show  reasonably  that  the 
profits  of  the  mill  must  be  stopped  by  an  unreasonable  delay  in  the 
delivery  of  the  broken  shaft  by  the  carrier  to  the  third  person? 
Suppose  the  plaintiffs  had  another  shaft  in  their  possession  put  up 
or  putting  up  at  the  time,  and  that  they  only  wished  to  send  back 
the  broken  shaft  to  the  engineer  who  made  it.  It  is  clear  that  this 
would  be  quite  consistent  with  the  above  circumstances,  and  yet  the 
unreasonable  delay  in  the  delivery  would  have  no  effect  upon  the 
■^intermediate  profits  of  the  mill.  Or,  again,  suppose  that,  at  the  time 
of  the  delivery  to  the  carrier,  the  machinery  of  the  mill  had  been  in 
other  respects  defective,  then,  also,  the  same  results  would  follow. 
Here  it  is  true  that  the  shaft  was  actually  sent  back  to  serve  as  a 
model  for  a  new  one,  and  that  the  want  of  a  new  one  was  the  only 
cause  of  the  stoppage  of  the  mill,  and  that  the  loss  of  profits  really 
arose  from  not  sending  down  the  new  shaft  in  proper  time,  and  that 
this  arose  from  the  delay  in  delivering  the  broken  one  to  serve  as  a 
model.  But  it  is  obvious  that,  in  the  great  multitude  of  cases  of 
millers  sending  off  broken  shafts  to  third  persons  by  a  carrier  under 
ordinary  circumstances,  such  consequences  would  not,  in  all  proba- 
bility, have  occurred;  and  these  special  circumstances  were  here 
never  communicated  by  the  plaintiffs  to  the  defendants.  It  follows, 
therefore,  that  the  loss  of  profits  here  cannot  reasonably  be  consid- 
ered such  a  consequence  of  the  breach  of  contract  as  could  have  been 
fairly  and  reasonably  contemplated  by  both  the  parties  when  they 
made  this  contract.  For  such  loss  would  neither  have  flowed  natu- 
rally from  the  breach  of  this  contract  in  the  great  multitude  of  such 


138  CARRIERS. 

cases  occuring  under  ordinary  circumstances,  nor  were  the  special 
circumstances,  which,  perhaps,  would  have  made  it  a  reasonable  and 
natural  consequence  of  such  breach  of  contract,  communicated  to  or 
known  by  the  defendants.  The  judge  ought,  therefore,  to  have  told 
the  jury  that,  upon  the  facts  then  before  them,  they  ought  not  to 
take  the  loss  of  profits  into  consideration  at  all  in  estimating  the 
damages.  There  must  therefore  be  a  new  trial  in  this  case. 
Rule  absolute. 

To  charge  the  carrier  with  notice  of  the  sender's  object,  so  as  to  make  him 
liable  for  the  failure  to  gain  that  object,  within  the  rule  in  such  cases,  it  is  not 
necessary  that  such  notice  should  have  been  expressly  given.  It  is  sufficient  that 
the  circumstances  show  a  common  knowledge  of  the  object  in  view.  Simpson  v. 
London  and  North-western  Railway  Co.  L.  Ii.  1  Q.  B.  D.  274. 

But  in  order  that  a  notice  to  the  carrier  should  have  the  effect  of  rendering 
him  liable  for  more  than  ordinary  damages,  it  seems  that  it  must  be  given  under 
such  circumstances  as  to  make  it  a  term  of  the  contract  that  the  carrier  will  be 
liable  for  such  damages  if  the  contract  be  broken.  Home  v.  Midland  Railway  Co. 
L.  R.  8  C.  P.  131. 


Carrier's  Delay  ;  Profits. 


[i860.]     Gee  v.  Lancashire  &  Yorkshire  Railway 

(6  H.  &  N.  211). 

The  plaintiffs  delivered  to  the  defendants,  who  were  carriers,  ten  tons  of  cotton,  to  be 
carried  from  Liverpool  to  Oldham.  In  the  usual  course  the  cotton  should  have  been 
received  on  the  following  day,  but  it  did  not  in  fact  arrive  till  four  days  afterwards. 
In  consequence  of  the  delay,  a  new  mill  of  the  plaintiffs  was  stopped  for  want  of  cot- 
ton to  go  on  with.  At  the  time  of  the  delivery  of  the  cotton  to  the  defendants 
nothing  was  said  as  to  the  particular  inconvenience  likely  to  result  from  the  delay  in 
forwarding  it.  But  on  the  day  before  it  was  delivered  to  the  defendants,  and  re- 
peatedly on  each  succeeding  day  until  it  arrived  at  Oldham,  one  of  the  plaintiffs 
called  to  inquire  about  it,  and  on  each  occasion  told  the  manager  of  the  goods  de- 
partment at  Oldham  station  that  the  mill  was  at  a  stand,  solely  on  account  of  the 
non-delivery  of  the  cotton.  In  an  action  against  the  defendants  for  neglect  in  de- 
livering the  cotton,  the  plaintiffs  proved  that  during  the  time  the  mill  was  at  a  stand 
they  had  paid  in  wages  11. ;  and  that  the  profit  which  would  have  been  made  if  the 
mill  had  been  at  work  was  11.  10s.  The  judge  of  the  county  court  told  the  jury  that 
when,  as  in  the  present  case,  by  the  neglect  of  a  carrier,  a  man  had  no  material  to 
carry  on  his  business,  he  had  a  right  to  charge  as  legal  damage  such  loss  as  natu- 
rally and  immediately  arose  from  stopping  the  mill;  that  the  plaintiffs  were  entitled 
to  the  money  they  had  actually  paid  as  wages,   11.,  and  that  the  profit  which  the 


GEE   v.   LANCASHIRE  &  YORKSHIRE  RAILWAY.  139 

plaintiffs  would  have  made  was  a  fair  subject  of  calculation ;  and  the  jury  should 
therefore  give,  over  and  above  the  sum  of  7/.,  such  amount  as  would  be  the  actual 
loss  and  detriment  the  plaintiffs  had  suffered  by  the  non-arrival  of  the  cotton  in  due 
course.  Held,  that  this  was  a  misdirection,  and  that  the  plaintiffs  were  not  entitled 
to  the  amount  of  wages  paid  and  of  the  profits  lost  as  legal  damages,  inasmuch  as  it 
assumed  that  the  stoppage  of  the  mill  arose  entirely  from  the  non-delivery  of  the 
cotton,  when  in  fact  it  arose  partly  from  that  and  partly  from  the  plaintiffs  having  no 
cotton  to  go  on  with. 

Semble,"  that  the  jury  might  have  properly  given  the  amount  of  the  wages  and  loss  of 
profit  as  damages,  if  they  had  found  as  a  fact  that  the  stoppage  of  the  mill  was  a 
consequence  of  the  non-delivery  of  the  cotton  which,  either  from  express  notice  or 
the  course  of  business  in  the  district,  might  have  been  anticipated  by  the  parties  at 
the  time  of  making  the  contract. 

Qucere,  per  Bramwell,  B.,  whether  if,  in  the  course  of  the  performance  of  a  contract,  one 
party  gives  notice  to  the  other  of  any  particular  consequence  which  will  result  from 
a  breach  of  the  contract,  and  the  latter,  after  that  notice,  persists  in  breaking  the 
contract,  the  former  may  not  hold  him  responsible  in  damage  for  the  consequences 
if  they  result  from  the  breach,  though  they  are  not  such  as  would  naturally  arise, 
and  were  not  in  contemplation  of  the  parties  at  the  time  of  the  contract. 

This  was  an  appeal  from  the  decision  of  the  judge  of  the  county 
'Court  of  Lancashire  holden  at  Oldham. 

The  particulars  annexed  to  the  summons  were  as  follows :  The 
plaintiffs  seek  to  recover  damages,  "  For  that  the  defendants,  being 
common  carriers,  agreed  with  the  plaintiffs  for  reward  to  carry  duly 
upon  the  defendants'  railway,  and  to  deliver  duly  to  the  plaintiffs, 
fifteen  bales  of  cotton  ;  yet  the  defendants  broke  the  said  agreement 
by  not  carrying  and  delivering  within  a  reasonable  time,  and  ne- 
glected and  refused  to  carry  and  deliver  the  same  for  seven  days, 
whereby  the  plaintiffs  were  injured  in  their  trade  and  business  as 
cotton  spinners,  and  they  were  prevented  from  working  their  mill 
and  machinery  during  each  of  the  said  days,  and  incurred  expenses 
in  compensating  their  workmen  for  loss  of  time,  and  lost  great 
profits." 

The  case  was  heard  before  the  judge  of  the  county  court  and  a 

Thomas  Gee,  one  of  the  plaintiffs,  stated  that  a  short  time  ago 
the  plaintiffs  rented  a  mill  at  Bottom-o'-the-Moor,  near  Oldham, 
which  they  intended  to  work,  in  addition  to  another  mill  which  they 
had  previously  worked.  At  the  beginning  of  the  week,  commencing 
on  the  22d  of  January,  the  mill  was  ready,  and  the  plaintiffs  had  en- 
gaged a  number  of  hands  for  it.  On  Tuesday,  the  24th,  Thomas 
Gee  went  to  Liverpool  and  purchased  a  quantity  of  cotton  for  the 
mill.  Ten  bales  of  cotton,  part  of  the  purchase,  were,  on  Thursday, 
the  26th  of  January,  about  eleven  o'clock  in  the  forenoon,  delivered 
to  the  defendants  at  the  station  at  Liverpool,  to  be  carried  to  Old- 
ham, to  the  plaintiffs'  mill  there. 


140  CARRIERS. 

It  was  proved  that  the  plaintiffs  had  been  constantly  in  the  habit 
of  purchasing  cotton  at  Liverpool  for  their  old  mill  and  having  the 
same  carried  by  the  defendants  ;  and  that,  on  all  former  occasions, 
the  cotton  delivered  to  the  defendants  at  Liverpool  on  the  afternoon 
of  one  day  had  been  delivered  at  the  plaintiffs'  mill  at  Oldham  by 
nine  o'clock  on  the  following  morning  at  latest. 

The  cotton  in  question  was  not  delivered  at  the  plaintiffs'  mill 
until  Monday,  the  30th,  at  half-past  eleven  o'clock  in  the  forenoon  ; 
and  in  consequence  of  the  delay  the  plaintiffs'  mill  was  prevented 
from  being  worked  on  Friday  the  27th,  Saturday  the  28th,  and  half 
of  Monday  the  30th.  He  stated  that 
His  work  people  were  kept  idle  for  the  time,  to  whom  he    £    s.    d. 

had  to  pay  wages 7     0     0 

The  rent  of  the  mill  was  410/.,  of  which  a  proportion  for 

the  time  was 3  10     1 

A  capital  of  8,000Z.,  the  interest  of  which,  for  the  time  in 

question,  was 2  10     0 

Profits  that  would  have  been  made  by  working  the  mill  for 

the  time  in  question 7  10     0 

Thomas  Gee  further  stated  that  he  expected  that  the  cotton 
would  arrive  at  Oldham  on  "Wednesday  the  25th,  and  that  on  that 
day  he  made  inquiries  about  the  cotton  at  the  defendants'  station  at 
Oldham  of  Jackson,  the  manager  of  the  goods  department.  On 
Thursday  the  26th,  he  again  made  inquiries  of  Jackson,  and  being 
told  that  the  cotton  had  not  come,  requested  Jackson  to  telegraph  to 
Liverpool  about  it.  At  twelve  o'clock  on  the  same  day  he  called  at 
the  Oldham  station,  and  was  informed  by  Jackson  that  he  had  tele- 
graphed to  Liverpool,  but  that  no  answer  had  been  received.  Subse- 
quently he  went  to  the  Oldham  station  several  times  that  day,  but 
could  get  no  information  respecting  the  cotton.  On  Friday,  at  nine 
in  the  morning,  he  again  called  and  requested  Jackson  to  telegraph 
again  to  Liverpool  respecting  the  cotton.  He  called  several  times 
during  the  day  but  was  informed  that  no  answer  had  been  received. 
On  Saturday  the  28th,  about  nine  o'clock  in  the  morning,  he  called 
again  and  was  told  that  the  cotton  was  then  lying  at  the  Middleton 
station  on  the  defendants'  railway,  about  a  mile  and  a  half  from  Old- 
ham, and  that  the  plaintiffs  should  have  it  by  ten  o'clock  in  the  fore- 
noon. 

The  first  time  that  Thomas  Gee  saw  Jackson,  and  on  every  occa- 
sion when  he  made  inquiries,  he  told  him  that  the  mill  would  be  at  a 
stand  solely  in  consequence  of  the  non-delivery  of  the  cotton,  and  that 
the  plaintiffs  would  look  to  the  company  for  compensation  for  the 


GEE   v.   LANCASHIRE  &  YORKSHIRE  RAILWAY.  141 

loss  occasioned.  On  cross-examination  Thomas  Gee  said,  that  the 
fact  that  the  mill  would  be  at  a  standstill  if  the  cotton  was  not  de- 
livered immediately,  was  not  stated  to  the  defendants  or  their  agent 
at  Liverpool  by  the  person  who  delivered  the  cotton  there  at  the 
time  of  such  delivery ;  that  the  cotton  was  delivered  in  the  ordinary 
way  without  any  special  terms  or  contract  as  to  the  delivery  thereof 
at  the  plaintiffs'  mill  at  Oldham,  and  that  the  company  had  a  daily 
delivery  of  goods  at  Oldham. 

The  judge  told  the  jury  that  he  thought  it  was  too  nice  to  seek 
as  damages  the  interest  of  capital  and  the  proportion  of  rent ;  and 
that  the  jury  must  not  consider  those  items  in  estimating  the  dam- 
ages ;  but  when,  by  the  neglect  of  the  carrier,  a  man  had  no  material 
to  carry  on  his  business,  he  had  a  right  to  charge  as  legal  damage  such 
loss  as  naturally  and  immediately  arose  from  the  stoppage  of  the  mill. 
He  asked  them  what  was  the  actual  loss  and  detriment  that  the  plaint- 
iffs suffered  by  the  non-arrival  of  the  cotton  in  due  course.  He  said 
the  plaintiffs  were  entitled  to  the  money  they  had  actually  paid  as 
wages,  viz.,  71.,  and  that  the  profit  the  plaintiffs  would  have  made  was 
a  fair  subject  of  calculation.  Mr.  Thomas  Gee  had  put  it  at  71.  10s. 
No  doubt,  however,  he  had  calculated  it  at  the  highest  amount.  The 
jury  therefore  should  give  such  damages  as  they  should  think  proper 
over  the  sum  of  71. ;  such  amount,  in  fact,  as  in  their  opinion  would 
be  the  actual  loss  and  detriment  that  the  plaintiffs  had  sustained  by 
the  non-arrival  of  the  cotton  in  due  course. 

The  jury  found  a  verdict  for  the  plaintiffs,  with  lol.  damages. 
The  defendants  were  dissatisfied  with  the  direction  of  the  judge 
as  to  the  damages ;  therefore  they  appealed. 

Pollock,  C.  B. — This  is  an  appeal  against  the  decision  in  the 
county  court,  on  the  ground  that  the  law  was  improperly  laid  down 
by  the  judge  in  directing  the  jury  what  damages  they  were  to  give. 
In  the  first  place,  he  told  the  jury  that  the  plaintiffs  were  entitled  to 
the  money  they  had  paid  for  wages,  which  was  71.  This  he  treats  as 
a  positive  item — an  amount  which  the  jury  ought  to  give.  Then  he 
said  that  the  plaintiffs  were  entitled  to  recover  whatever  actual  dam- 
age or  detriment  they  had  sustained  from  the  non-delivery  of  the 
cotton  in  proper  time  ;  that  the  plaintiffs  put  the  loss  of  profit  at 
71. 10s.,  but  no  doubt  they  put  it  at  the  highest  amount.  He  assumes 
this  loss  to  have  been  sustained  in  consequence  of  the  non-arrival  of 
the  cotton,  while  in  fact  it  was  not  in  consequence  of  the  non-arrival 
of  the  cotton  alone,  but  in  consequence  of  that  fact  and  of  the  plaint- 
iffs having  no  other  cotton  in  stock.  If  it  had  been  established  that 
such  is  the  practice  among  cotton  spinners,  so  that  every  carrier  must 


142  CARRIERS. 

have  known  that  the  mill  would  be  at  a  standstill  until  the  cotton 
arrived,  the  damages  would  have  been  properly  assessed.  And  that 
would  be  so  whether  the  carrier  had  actual  notice  of  the  fact,  or  no- 
tice from  the  well-understood  course  of  business.  But  the  business 
of  life  is  conducted  with  reference  to  the  necessity  of  guarding 
against  certain  accidents,  and  owners  of  cotton  mills  may  fairly  be 
expected  to  guard  against  the  risk  of  being  delayed,  by  having  some- 
thing in  stock.  Is  a  railway  company  bound  to  take  notice  that,  in 
a  particular  case,  a  mill  would  be  at  a  stand  if  goods  were  not  deliv- 
ered on  a  particular  day  ?  I  think  not.  I  think  a  carrier  is  not  re- 
sponsible for  such  consequences,  unless  distinct  notice  is  given  at  the 
time  of  the  sending  of  the  goods  to  be  carried.  If  the  plaintiffs  had 
said,  "  Now,  there  must  be  no  mistake,  the  cotton  must  be  delivered 
immediately ;  it  is  required  for  a  mill  which  is  actually  at  a  stand  for 
want  of  it,  and  if  it  is  not  delivered  in  due  time,  you  will  be  respon- 
sible for  all  the  consequences  ; "  probably  the  railway  company  would 
not  have  taken  it  except  at  a  high  rate.  Common  carriers  are  bound 
to  carry  goods  at  a  reasonable  rate,  but  not  to  incur  such  a  responsi- 
bility as  would  be  imposed  upon  them  if  the  direction  of  the  judge 
in  this  case  were  correct.  I  think  that  the  rule  as  to  damages  of  this 
sort  was  correctly  laid  down  in  Hadley  v.  Baxendale  (9  Exch.  341), 
and  that  the  judge  did  not  follow  it  because  he  assumed  that  the 
whole  loss  arose  entirely  from  the  default  of  the  defendants  in  not  de- 
livering the  goods,  whereas  it  arose  partly  from  that  and  partly  from 
the  plaintiffs  having  no  cotton  to  go  on  with. 

Bramwell,  B. — I  am  of  the  same  opinion,  though  I  think  it 
likely  that  the  same  damages  may  be  given  if  the  case  is  again  tried. 
The  law  on  this  subject  is  laid  down  correctly  in  Hadley  v.  Baxen- 
dale. To  ascertain  the  damage  it  is  necessary  to  find  out  how  much 
better  off  the  plaintiffs  would  have  been  if  the  contract  had  not  been 
broken.  The  plaintiffs  are  not  necessarily  entitled  to  recover  the 
whole  amount  given.  Hadley  v.  Baxendale  decides  that  a  defend- 
ant is  not  liable,  except  for  such  damages  "  as  may  fairly  and  reason- 
ably be  considered,  either  arising  naturally,  i.  e.,  according  to  the 
usual  course  of  things,  from  the  breach  of  contract  itself,  or  such  as 
may  reasonably  be  supposed  to  have  been  in  the  contemplation  of 
both  parties  at  the  time  they  made  the  contract  as  the  probable  re- 
sult of  the  breach  of  it."  I  am  not  sure  that  another  qualification 
might  not  be  added  which  would  be  in  favor  of  the  plaintiffs  in  this 
case,  viz.,  that  in  the  course  of  the  performance  of  the  contract  one 
party  may  give  notice  to  the  other  of  any  particular  consequences 
which  will  result  from  the  breaking  of  the  contract,  and  then  have  a 


GEE  v.  LANCASHIRE  &   YORKSHIRE  RAILWAY.        143 

right  to  say  :  "  If,,  after  that  notice,  you  persist  in  breaking  the  con- 
tract, I  shall  claim  the  damages  which  will  result  from  the  breach." 
But  in  any  case  you  must  first  find  out  the  loss  sustained  by  the 
plaintiff,  and  afterwards  give  it  him  minus  any  damages  excluded  by 
these  rules.  And  I  cannot  but  think  that  if  the  judge  had  left  it  to 
the  jury  to  determine  the  damages  in  that  way,  they  would  probably 
have  given  the  same  sum  which  they  have  already  given.  But  sup- 
pose it  had  appeared  that  cotton  spinners  usually  keep  a  stock  suf- 
ficient for  a  mill's  consumption  in  hand ;  the  inconvenience  of  the 
delay  in  delivering  the  cotton  would  be  comparatively  small.  It 
may  turn  out  that  the  plaintiffs  ought  not  to  receive  more  than  that, 
because  the  damage  which  resulted  is  not  such  as  in  the  usual  course 
of  things  would  result.  Therefore  we  cannot  say  as  a  matter  of  law 
that  the  plaintiffs  were  entitled  to  recover  the  two  sums  in  question. 
Mr.  Wheeler  contends  that,  on  a  fair  construction  of  the  summing 
up,  the  judge  did  not  lay  down  as  matter  of  law  that  the  plaintiffs 
were  entitled  to  those  sums,  but  asked  the  jury  what  was  the  actual 
damage  and  detriment  that  the  plaintiffs  had  sustained  by  reason  of 
the  non-delivery  of  the  cotton.  If  the  judge  had  said,  as  a  proposi- 
tion of  fact,  "  I  think  that  you  will  consider  that  the  plaintiffs  are 
entitled  to  claim  for  wages,"  I  doubt  if  there  would  have  been  any 
objection  to  the  summing  up.  But  he  says,  "  Where,  under  circum- 
stances such  as  exist  in  the  present  case,  by  the  neglect  of  a  carrier  a 
manufacturer  has  no  material  to  carry  on  his  business,  he  has  a  right 
in  my  opinion  to  charge  as  legal  damage  such  loss  as  naturally  and 
immediately  arose  from  the  stoppage  of  his  mill."  He  should  have 
added,  "  If  the  jury  are  of  opinion  that  the  stoppage  was  the  natural 
consequence  of  the  non-delivery  of  the  goods."  I  say  this  in  order 
that  the  county  court  judge  may  not  suppose  on  the  next  trial  that 
we  think  that  these  two  sums  are  not  recoverable ;  for  I  do  not  say 
so  ;  and  I  do  not  understand  that  the  other  members  of  the  court 
think  so. 

Channell,  B. — The  rule  as  to  the  measure  of  damages  was  rightly 
laid  down  in  the  case  of  Hadley  v.  Baxendale.  But  it  is  contended 
that  upon  the  facts  of  the  present  case  it  is  distinguishable  from 
Hadley  v.  Baxendale,  and  that  the  ruling  of  the  judge  is  not  incon- 
sistent with  the  rule  laid  down  by  the  court  in  that  case.  Taking 
the  whole  of  the  summing  up  together,  it  appears  to  me  that  the 
county  court  judge  did  direct  the  jury  to  consider  the  wages  and  the 
loss  of  profit  as  the  measure  of  damages.  As  to  the  profit,  he  gave 
them  an  opportunity  of  correcting  the  plaintiffs'   estimate  of  the 


141  CARRIERS. 

amount,  if  they  thought  it  erroneous.  But^  he  made  them  under- 
stand that,  after  setting  right  the  amount  of  profit,  they  were  to  take 
the  loss  of  profit  and  wages  as  the  measure  of  damages.  I  think  that 
was  wrong.  It  cannot  be  said,  as  a  matter  of  law,  that  these  were 
damages  which  naturally  flowed  from  the  breach  of  the  contract ;  or 
that  anything  had  passed  to  show  that  they  were  in  the  contempla- 
tion of  the  parties  when  the  contract  was  entered  into. 

Wilde,  B. — The  plaintiffs'  claim  for  damages  is  divided  into  four 
heads.  The  county  court  judge  told  the  jury  to  dismiss  two  of  them 
from  their  consideration.  As  to  the  other  two,  the  claim  for  loss  of 
wages  paid,  and  for  anticipated  profits,  he  told  them  that  the  plaint- 
iffs had  a  right  to  charge  as  legal  damage  such  loss  as  naturally  and 
immediately  arose  from  the  stoppage  of  the  mill.  He  then  pointed 
out  what  was  the  "  legal  damage,"  intimating  that  it  was  for  them  to 
estimate  the  amount ;  as  to  the  wages,  that  the  plaintiffs  were  en- 
titled to  the  money  they  had  actually  paid,  which  was  11. ;  as  to  the 
profits,  that  the  jury  were  to  estimate  them,  and  having  done  so  to 
o-ive  as  damages,  over  and  above  the  sum  of  11..  such  amount  as,  in 
their  opinion,  would  be  the  actual  loss  and  detriment  that  the  plaint- 
iffs had  suffered,  having  previously  pointed  out  that  this  was  the  loss 
resulting  from  the  stoppage  of  the  mill.  The  question  is  whether 
that  is  correct.  According  to  the  case  of  Hadley  v.  Baxendale,  the 
damage  which,  as  a  matter  of  law,  must  be  considered  as  a  measure 
of  damages,  is  such  as  either  arises  naturally  from  the  breach  of  con- 
tract, or  such  as  both  parties  might  reasonably  have  expected  to  re- 
sult from  a  breach  of  the  contract.  It  has  been  pointed  out  by  the 
Lord  Chief  Baron  that  the  stoppage  of  the  mill  was  not  a  natural 
consequence  of  the  non-arrival  of  the  bales  of  cotton,  but  of  the  non- 
arrival  of  the  bales  and  of  the  plaintiffs'  having  no  cotton  to  go  on 
with.  "Was  it  damage  which  the  parties  might  reasonably  expect  ? 
It  would  be,  if  it  were  the  practice  to  work  all  the  cotton  mills  in 
the  neighborhood  from  hand  to  mouth,  and  not  the  practice  for  mill- 
owners  to  keep  any  stock  of  cotton  in  hand.  "We  are  pressed  to  say 
what  is  the  rule  as  to  damages.  All  I  mean  to  say  is  that  these 
claims  are  not  the  measure  of  damages.  A  judge  cannot  lay  down 
that  the  plaintiffs,  as  a  matter  of  law,  are  entitled  to  them  as  the  le- 
gal measure  of  damage.  My  brother  Bramwell  has  pointed  out  that, 
on  a  second  trial,  the  jury  may  possibly  give  similar  damages  when 
the  matter  is  submitted  to  them  in  a  more  general  way.  For  my 
own  part  I  think  that,  although  an  excellent  attempt  was  made  in 
Hadley  v.  Baxendale  to  lay  down  a  rule  on  the  subject,  it  will  be 


ADAMS   EXPRESS   CO.   v.    EGBERT.  145 

found  that  the  rule  is  not  capable  of  meeting  all  cases ;  and  when  the 
matter  comes  to  be  further  considered,  it  will  probably  turn  out  that 
there  is  no  such  thing  as  a  rule,  as  to  the  legal  measure  of  damages, 
applicable  in  all  cases. 
Order  for  new  trial. 


Carrier;  Value  of  chance  for  prize  to  be  contended  for  fur- 
nishes the  Measure  of  Damages  for  the  loss  of  the  com- 
peting place. 


[i860.]  Adams  Express  Co.  v.  Egbert  (3G  Penn.  St.  360). 

A  committee  for  the  erection  of  a  public  building  advertised  for  plans  and  specifications, 
and  offered  a  premium  of  $500  to  the  successful  competitor,  who  should  present  the 
same  on  or  before  a  given  day  ;  the  plaintiff,  an  architect,  prepared  and  forwarded 
by  the  defendants,  who  were  common  carriers,  a  set  of  plans  and  specifications  for 
the  proposed  building ;  but,  in  consequence  of  the  defendants'  negligence,  the  box 
containing  them  was  not  delivered  until  after  the  time  specified :  Held,  that  the 
measure  of  damages,  in  an  action  against  the  carriers,  was  not  the  value  of  the  time 
and  labor  expended  in  making  the  plans  and  specifications,  but  the  value  of  the 
plaintiff's  chance  of  obtaining  the  premium. 

In  the  absence  of  proof  of  any  probability  that  the  plaintiff  would  have  obtained  the 
premium,  had  his  plans  and  specifications  been  delivered  according  to  the  contract, 
there  can  only  be  a  recovery  for  nominal  damages. 

In  all  actions  for  the  breach  of  a  contract,  the  loss  or  injury  for  which  damages  are 
sought  to  be  recovered  must  be  a  proximate  consequence  of  the  injury.  A  remote 
or  possible  loss  is  not  sufficient  ground  for  compensation. 

But  the  loss  of  profits  or  advantages  which  must  have  resulted  from  a  fulfillment  of  the 
contract,  may  be  compensated  in  damages,  where  they  are  the  direct  and  immediate 
fruits  of  the  contract,  and  must,  therefore,  have  been  stipulated  for,  and  have  been 
in  the  contemplation  of  the  parties  when  it  was  made. 

To  entitle  a  plaintiff,  however,  in  an  action  on  a  contract,  to  recover  more  than  nominal 
damages  for  its  breach,  there  must  be  evidence  that  an  actual,  substantial  loss  or  in- 
jury has  been  sustained ;  unless  the  contract  itself-  furnish  a  guide  to  the  measure- 
ment of  damages. 

Error  to  the  Common  Pleas  of  Cumberland  County. 

This  was  an  action  of  assumpsit  by  Dr.  A.  R.  Egbert  against  the 
Adams  Express  Company,  for  not  delivering,  in  proper  time,  a  box 
of  drawings  or  architectural  designs,  sent  by  the  plaintiff  to  the 
building  committee  of  the  Touro  Almshouse,  in  New  Orleans. 

In  the  fall  of  1858,  the  committee  of  the  Touro  Almshouse 
advertised  for  plans  and  specifications,  and  offered  a  premium  of 
10 


146  CARRIERS. 

$500  to  the  successful  competitor ;  and  limited  the  time  for  present- 
ing them  to  the  1st  of  November,  1858.  The  plaintiff  was  a  competi- 
tor for  this  premium,  and,  on  the  19th  of  October,  1858,  delivered  to 
James  Louden,  the  defendants'  agent,  a  box  of  drawings  of  plans 
for  the  said  almshouse.  Mr.  Louden,  not  knowing  the  amount  to  be 
charged  for  freight,  sent  the  box  to  Baltimore,  to  the  agent  of  the 
express  company  there,  with  directions  to  mark  upon  the  box 
"  freight  paid,"  and  to  charge  his  office  in  Carlisle.  The  freight, 
$3  50,  was  charged  to  Mr.  Louden's  office  as  being  paid,  for  which 
Louden  gave  the  plaintiff  a  receipt ;  but  the  agent  in  Baltimore 
neglected  to  mark  the  prepayment  of  freight  upon  the  box,  so  that, 
when  it  reached  New  Orleans,  the  committee  declined  to  pay  the 
freight,  and  it  was  not  delivered  to  them. 

The  mistake  in  not  marking  the  freight  prepaid  having  been 
discovered,  the  box  was  again  sent  to  the  committee,  in  March, 
1859,  after  the  plans  submitted  had  been  passed  upon,  and  the 
premium  of  $500  awarded  to  another  person.  When  the  box  was 
delivered  to  the  committee,  the  chairman,  at  the  request  of  the 
agent  of  the  express  company,  convened  them  to  examine  the  plans 
of  Dr.  Egbert,  which  were  found  to  be  totally  unsuited  for  the 
purpose  for  which  the  building  was  intended,  and  not  at  all  adapted, 
in  its  ventilation,  to  the  climate  in  which  it  was  to  be  erected.  The 
box  was  returned  to  the  company,  and  by  them  to  the  plaintiff. 

On  the  trial,  the  counsel  for  the  respective  parties  presented  cer- 
tain points  in  writing,  upon  which  they  requested  the  court  to  charge 
the  jury.  The  defendants'  points,  with  the  answers  returned  to 
them  by  the  court,  were  as  follows  : 

1.  That,  if  the  jury  believe  that  the  box  containing  the  plaintiffs 
architectural  designs  or  plans  for  building  the  Touro  Almshouse,  at 
the  city  of  New  Orleans,  consigned  to  R.  D.  Shephard,  G.  Keersheed, 
and  James  Saul,  were  received  by  the  consignees,  though  not  until  a 
plan  for  such  building  had  been  selected,  and  the  premium  therefor 
paid,  on  account  of  the  omission  of  the  defendants  to  mark  the 
freight  of  the  box  prepaid  ;  and  the  jury  also  believe  that  such  plan 
of  the  plaintiff  was  totally  unsuited  for  such  building,  and  wholly 
objectionable,  and  that,  had  it  arrived  in  due  time,  it  would  not  have 
been  selected  or  adopted,  nor  the  premium  paid  for  it ;  and  that  the 
plaintiff  would  have  gained  nothing  by  its  being  received  in  due 
time,  and  lost  nothing  by  the  omission  of  the  defendant  to  mark 
the  prepayment  of  the  freight  to  New  Orleans,  and  the  plaintiff 
sustained  no  actual  damage  thereby,  he  is  entitled  to  nominal  dam- 
ages only. 

Answered  in  the  affirmative. 


ADAMS   EXPRESS   CO.   v.   EGBERT.  147 

2d.  Independent  of  the  defendants'  evidence  in  the  cause,  there 
can  be  no  recovery  by  the  plaintiff  beyond  nominal  damages,  the 
plaintiff  not  having  proved  any  actual  damages,  and  the  chance  for 
the  premium  being  a  contingent  one. 

Answer — "  We  cannot  answer  this  point  as  requested ;  we  will 
state  the  law  applicable  to  this  position  in  answer  to  the  plaintiff's 
second  point." 

The  plaintiff's  points,  and  the  answers  to  them,  were  as  follows : 

1.  That  it  is  incontrovertibly  proved  that  the  box  set  out  in  the 
declaration  was  delivered  to  the  defendant,  to  be  carried  and  given 
to  the  persons  to  whom  the  same  was  directed ;  that  it  was  not  de- 
livered in  pursuance  of  their  contract,  and,  therefore,  the  plaintiff  is 
entitled  to  recover  in  this  action,  and  the  only  question  of  fact 
referred  to  the  jury  is,  how  much  the  plaintiff  is  entitled  to  recover. 

Answered  in  the  affirmative. 

2.  That  the  intrinsic  value  of  the  property  sent  is  not  the  only 
measure  of  damages,  but  that  it  is  the  duty  of  the  jury  to  take  into 
consideration  the  nature  of  the  property,  the  talent  and  labor  of  the 
man  necessary  to  produce  the  drawings,  the  reputation  which  he  had 
involved  in  obtaining  the  decision  of  the  committee  in  his  favor,  the 
fact  that  all  his  hopes,  expectations,  and  profits  were  cut  off  by  the 
negligence  of  the  defendants,  are  lit  subjects  for  the  consideration 
of  the  jury  in  assessing  the  damages. 

Answer. — "  If  the  defendants  failed  to  perform  their  contract, 
and  if  the  evidence  fails  to  satisfy  you,  that  if  the  contract  had  been 
performed,  it  would  have  been  of  no  benefit  or  advantage  to  the 
plaintiff,  then  you  may  take  into  consideration  the  time  and  labor 
bestowed  on  those  plans  and  drawings,  in  expectation  of  being  a 
competitor  for  the  premium  offered.  If  the  plaintiff  thought  proper 
to  bestow  his  time  and  labor  for  the  purpose  of  being  a  contestant 
for  the  offered  premium,  and  having  his  designs  exhibited  before 
the  committee,  and  he  has  been  disappointed  in  this  by  the  wrongful 
act  of  defendant,  this  is  a  proper  subject  for  consideration,  and  in 
this  aspect  of  the  case  the  plaintiff  may  recover  more  than  nominal 
damages.  What  amount  of  damages,  if  any,  the  plaintiff  ought 
to  recover,  under  all  the  evidence,  we  submit  to  you  to  determine  ; 
but  in  any  event  it  is  admitted  that  nominal  damages  may  be  re- 
covered." 

3.  That  it  is  the  duty  of  the  jury  to  discard  from  their  minds 
any  evidence  tending  to  prove  what  was  the  opinion  of  any  member 
of  the  committee  to  whom  the  plans  were  to  be  submitted,  except 
that  of  R.  D.  Shephard,  for  so  far  as  the  evidence  has  been  given  in 


148  CARRIERS. 

this  cause,  it  was  never  submitted  to  the  committee,  and  all  chance 
of  his  obtaining  the  premium,  and  the  reputation  which  a  decision 
in  his  favor  would  have  entitled  him,  was  cut  off  by  the  gross  negli- 
gence of  the  defendant. 

Answered  in  the  affirmative. 

To  these  answers  the  defendant  excepted;  and  a  verdict  and 
judgment  having  been  rendered  for  the  plaintiff  for  $375,  the  de- 
fendant removed  the  cause  to  this  court,  and  here  assigned  the  same, 
inter  alia,  for  error. 

The  opinion  of  the  court  was  delivered  by 

Strong,  J. — The  express  company  are  common  carriers.  In  1858, 
they  received  from  the  plaintiff  below  a  box  containing  plans  and 
specifications,  to  be  forwarded  to  a  committee  who  had  offered  a 
premium  of  $500  to  the  successful  competitor,  for  the  best  plans  for 
the  Touro  Almshouse  at  New  Orleans.  The  plaintiff's  drawings 
were  sent  for  competition.  In  consequence  of  the  default  of  the 
company,  they  were  not  delivered  until  after  the  appointed  day  for 
receiving  them,  nor  until  after  the  premium  had  been  awarded.  The 
committee  was,  however,  then  convened,  and  the  plans  were  ex- 
amined. On  the  trial,  it  was  proved  by  one  member,  the  only  one 
whose  testimony  was  taken,  that,  in  his  opinion,  the  plans,  had  they 
been  received  in  time,  would  not  have  been  adopted,  because  they 
did  not  suit  the  climate,  and  because  they  were  altogether  objection- 
able. This  is  an  action  against  the  company  to  recover  damages  for 
the  breach  of  their  contract  to  deliver  in  time,  and  the  question  is, 
what  is  the  proper  rule  for  the  measurement  of  damages  1 

It  is  doubtless  true,  that  in  all  actions  for  the  breach  of  a  contract 
the  loss  or  injury  for  which  damages  are  sought  to  be  recovered 
must  be  a  proximate  consequence  of  the  breach.  A  remote  or  pos- 
sible loss  is  not  sufficient  ground  for  compensation.  There  is  no 
measure  for  those  losses  which  have  no  direct  and  necessary  con- 
nection with  the  stipulations  of  the  contract,  or  which  are  dependent 
upon  contingencies  other  than  the  performance  of  the  contract,  and 
which  are  therefore  incapable  of  being  estimated.  With  no  certainty 
can  it  be  said  that  such  losses  are  attributable  to  the  wrongful  act  or 
omission  of  him  who  has  violated  his  engagement.  But  on  the  other 
hand,  the  loss  of  profits  or  advantages  which  must  have  resulted 
from  a  fulfillment  of  the  contract  may  be  compensated  in  damages, 
when  they  are  the  direct  and  immediate  fruits  of  the  contract,  and 
must,  therefore,  have  been  stipulated  for,  and  have  been  in  the  con- 
templation of  the  parties  when  it  was  made. 

Applying  this  rule  to  the  present  case,  why  was  not  the  loss  of 


ADAMS   EXPRESS   CO.   v.   EGBERT.  149 

the  opportunity  to  compete  for  the  premium  (whatever  may  have 
been  its  value),  an  immediate  consequence  of  the  breach  of  the  con- 
tract ?     Why  was  not  that  loss  in  contemplation  of  the  parties  ? 
The  company  undertook  to  transport  the  box  to  the  committee  ap- 
pointed to  award  the  premium.     The  purpose  of  the  contract  was  to 
secure  to  the  plaintiff  the  privilege  of  competition.     Certainly  he 
must  have  had  that  in  contemplation,  and  if  the  company  were  in- 
formed of  the  object  of  the  transmission,  the  loss  of  this  privilege 
was  in  view  of  both  parties  at  the  time  they  entered  into  the  con- 
tract.    But  whether  known  or  not  by  the  company,  the  loss  was  an 
immediate  result  of  their  negligent  breach.     "We  do  not  now  stop  to 
inquire  whether  the  defendants  can  be  held  liable  for  every  conse- 
quence, even  though  immediate,  which  cannot  reasonably  be  sup- 
posed to  have  been  in  the  contemplation  of  both  parties  at  the  time 
they  made  the  contract,  as  the  probable  result  of  the  breach  of  it. 
Perhaps,  if  the  special  circumstances  under  which  the  contract  was 
made,  and  which  occasioned  special  and  unusual  injury  to  attend  its 
breach,  were  unknown  to  the  party  which  broke  it,  they  could  not 
be  held  to  make  compensation  for  more  than  the  amount  of  injury 
which  generally  results  from  the  breach  of  such  contracts  in  cases 
unattended  by  any  special  circumstances.     We  are  inquiring  now, 
however,  only  whether  the  loss  of  the  opportunity  by  the  plaintiff 
to  exhibit  his  plans  and  specifications  for  competition  was,  or  was 
not,  too  remote  a  consequence  of  the  breach  of  contract  to  be  taken 
into  consideration  by  the  jury.     We  cannot  perceive  why  it  was  not 
the  first  consequence,  proximate,  immediate.     Some  doubt  may  be 
suggested,  arising  out  of  the  case  of  Watson  v.  The  Ambergate, 
Nottingham  and  Boston  Railway  Company  (15  Jurist,  448),  a  case 
in  the  Queen's  Bench,  England,  the  facts  of  which  closely  resemble 
those  of  the  present  case.     There  a  prize  had  been  offered  for  the 
best  plan  and  models  of  a  machine  for  loading  colliers  from  barges, 
and  plans  and  models  for  the  competition  were  to  be  sent  by  a  cer- 
tain day.     The  plaintiff  sent  a  plan  and  model  accordingly  by  a  rail- 
way, but,  through  negligence,  it  did  not  arrive  at  its  destination 
until  after  the  appointed  day.     The  court  appeared  to  be  of  opinion, 
'  though  the  point  was  not  directly  raised,  that  the  proper  measure  of 
damages  was  the  value  of  labor  and  materials  expended  in  making 
the  plan  and  model,  and  not  the  chance  of  obtaining  the  prize,  the 
latter  being  too  remote  a  ground  for  damages.     Patteson,  J.,  said, 
that  the  right  principle  upon  which  damages  were  recoverable  was, 
that  the  goods  were  made  for  a  special  purpose,  which  had  been 
defeated  by  the  negligence  of  the  defendants,  and  thus  they  had  be- 
come useless. 


150  CARRIERS. 

It  is  difficult  to  see  how  the  loss  of  the  time  and  labor  expended 
is  a  less  remote  consequence  of  the  breach  of  the  contract,  than  is 
the  loss  of  the  opportunity  to  compete.  Nor  is  it  apparent,  how 
the  value  of  the  labor  and  materials  expended  upon  the  plan  and 
model  in  that  case,  or  the  value  of  the  time  and  labor  devoted  to 
the  plans  and  specifications  in  this,  can  be  regarded  as  any  measure 
of  the  damages  sustained  in  consequence  of  the  non-delivery  in 
time  of  the  articles  sent,  unless  the  opportunity  to  compete  for  the 
prize  be  also  taken  into  the  estimation.  If  the  chance  for  the  prize 
is  too  remote,  if  it  has  no  appreciable  value,  and  cannot  be  considered 
by  the  jury,  then  what  has  been  lost  by  the  breach  of  the  contract 
to  deliver  in  time?  Not  the  plans  and  specifications,  for  they  are 
still  in  existence.  The  plaintiff  has  them.  The  time  and  labor 
would  have  been  lost,  without  any  breach  of  the  contract,  if  the 
plaintiff's  competition  for  the  prize  had  proved  unsuccessful.  Their 
loss  was  not,  therefore,  necessarily  a  consequence  of  the  breach  of 
the  contract.  And  if  the  time  and  labor  were  expended  solely  to 
secure  a  chance  which  was  valueless,  how  can  they  have  any  value  ? 
They  are  certainly  as  remote  and  as  contingent  as  is  the  chance 
itself.  The  fact  appears  to  be,  that  the  opportunity  to  compete  is 
what  gives  the  time  and  labor  expended  any  value,  and  if  there  can 
be  any  recovery  at  all  beyond  nominal  damages,  as  was  held  by  the 
Queen's  Bench,  it  must  be  because  the  loss  of  the  chance  for  the 
prize,  as  it  was  then  called,  or,  as  I  would  term  it,  the  loss  of  the 
opportunity  to  compete  for  the  prize,  is  not  too  remote  to  be  con- 
sidered, and  because  its  worth  is  capable  of  being  measured. 

But  how  is  this  loss  to  be  estimated  ?  Suppose  the  engagement 
of  the  company  had  been  directly  to  afford  to  the  plaintiff  an  oppor- 
tunity to  compete  for  the  premium  offered.  Could  he,  for  the 
breach  of  such  an  engagement,  have  recovered  more  than  nominal 
damages,  without  any  proof  that  any  actual  injury  had  resulted 
from  the  breach  ?  We  think  not.  To  entitle  a  plaintiff,  in  an  action 
founded  on  a  contract,  to  recover  more  than  nominal  damages  for 
its  breach,  there  must  always  be  evidence  that  an  actual,  substantial 
loss  or  injury  has  been  sustained,  unless  the  contract  itself  furnishes 
a  guide  to  the  measurement  of  the  damages ;  and  even  when  there 
is  some  such  proof,  but  the  amount  is  uncertain,  courts  have  some- 
times directed  the  jury  to  allow  the  smallest  sum  which  would  satisfy 
the  proof  (Lawton  v.  Sweeny,  8  Jurist,  964 ;  Clunness  v.  Pezzey,  1 
Campb.  8).  A  plaintiff  claims  compensation.  The  amount  of  that 
compensation  is  a  part  of  his  case.  Whether  in  the  present  case  this 
plaintiff  sustained  any  actual  injury,  depended  upon  the  degree  of 


ADAMS   EXPRESS   CO.   v.   EGBERT.  151 

probability  there  was  that  he  would  have  been  a  successful  competi- 
tor if  the  contract  had  not  been  broken.  If  his  plans  were  entirely 
defective,  if  they  were  suited  better  for  a  bridge  than  for  an  alms- 
house, it  cannot  be  claimed  that  he  was  damaged.  He  introduced, 
however,  no  evidence  to  show  that  there  was  the  least  probability 
that  the  premium  would  have  been  awarded  to  him,  had  his  plans 
been  submitted  to  the  committee  in  time.  On  the  contrary,  the  de- 
fendants proved  that  doubtless  he  must  have  failed.  So  far,  then, 
from  there  being  proof  of  actual  damage,  it  was  disproved.  The 
court  below,  however,  instructed  the  jury  that  there  might  be  a 
recovery  for  more  than  nominal  damages.  They  reversed  the  rule 
generally  recognized,  that  the  plaintiff  must  show  a  substantial,  real 
injury,  and  cast  upon  the  defendants  the  burden  of  proving  that 
there  was  none.  In  this,  we  think,  there  was  error.  The  second 
point  of  the  defendants  should  have  been  affirmed  unqualifiedly. 
Independent  of  the  defendants'  evidence,  the  plaintiff  was  not  en- 
titled to  recover  more  than  nominal  damages,  because  he  had  not 
proved  any  actual  damages,  and  the  chance  for  the  premium  was 
contingent.  Much  more  was  this  so  upon  the  whole  evidence  in  the 
cause. 

The  observations  already  made  are  also  applicable,  in  part,  to  the 
answer  of  the  court  to  the  second  point  of  the  plaintiff,  in  which  the 
same  error  is  apparent. 

We  do  not  understand  the  court's  answer  to  the  plaintiff's  third 
point  as  it  is  understood  by  the  plaintiffs  in  error.  The  court  could 
not  have  intended  to  instruct  the  jury  that,  under  any  circum- 
stances, the  plaintiff  could  recover  for  loss  of  a  chance  to  secure 
reputation,  or  that  the  negligence  of  the  defendants  alone  took  away 
his  chance  of  obtaining  the  premium.  Had  they  done  so,  it  would 
have  been  mistaken  instruction. 

The  remaining  assignment  of  error  is  not  sustained. 

Judgment  reversed,  and  a  venire  de  novo  awarded. 

Note.    In  a  similar  case  the  opposite  coDclusion  was  arrived  at  by  the  Court  of 

Queen's  Bench,  which  held  that  the  proper  measure  of  damages  was  the  value  of 

the  labor  and  materials  expended  in  making  the  plan  and  models,  and  not  the 

chance  of  obtaining  the  prize;  the  latter  was  too  remote  a  ground  for  damages. 

•Watson  v.  Ambergate,  N.  &  B.  Railway,  15  Jur.  448  (1851). 


152  CARRIERS. 


Neglect  by  Carrier  of  Passengers  ;   Proper  Items  of  Damage- 


[1863.]        Williams  v.  Vanderbilt  (28  N.  Y.  217). 

In  an  action  against  a  carrier  of  passengers  to  recover  damages  for  extraordinary  deten- 
tion of  the  passenger,  and  illness  thereby  occasioned,  as  well  as  for  neglect  to  con- 
vey him  to  the  intended  place  of  destination,  it  is  entirely  proper  to  show  that  the 
plaintiff  was  exposed  to  the  weather,  and  subjected  to  an  unhealthy  climate  while  so 
detained.  The  jury  is  thus  enabled  to  determine  whether  the  illness  was  occasioned 
by  the  defendant's  neglect  or  breach  of  duty. 

The  time  lost  and  expense  incurred  by  the  plaintiff  in  consequence  of  the  detention,  and 
of  the  illness  which  resulted  from  it,  so  far  as  occasioned  by  the  defendant's  default, 
are  legitimate  damages  to  be  recovered. 

It  appeared,  on  the  trial  of  this  action,  that  the  plaintiff  had  pur- 
chased of  the  defendant's  agent  at  New  York  city,  several  tickets  for 
transportation  from  that  city  to  San  Francisco,  by  several  distinct 
modes  of  conveyance  for  successive  parts  of  the  journey. 

One  ticket  entitled  him  to  a  passage  to  Greytown,  at  the  mouth 
of  the  Nicaragua  river,  on  the  ship  Prometheus,  which  belonged  to 
the  defendant ;  another  to  a  passage  up  that  river  through  Nicara- 
gua lake  on  a  steamer  of  the  Accessory  Transit  Company,  and  thence 
by  land  to  San  Juan  del  Sur  on  the  Pacific  coast ;  and  a  third 
to  a  passage  thence  to  San  Francisco  on  the  steamer  North  America, 
of  which  the  defendant  was  one  of  the  owners,  and  which  was  ad- 
vertised to  leave  San  Juan  del  Sur  about  fifteen  days  after  the 
plaintiff  should  arrive  there,  according  to  the  regular  course  of  con- 
veyance. 

The  plaintiff  left  New  York  in  the  Prometheus,  and  arrived  at 
Greytown  March  15,  1852,  and  was  there  detained  eleven  days.  He 
then  started  on  a  steamer  of  the  Accessory  Transit  Company  for  San 
Juan  del  Sur,  and  on  the  way  arrived  at  a  place  called  San  Carlos, 
where  he  fell  ill  of  a  fever  peculiar  to  the  climate  of  Nicaragua.  At 
San  Carlos  he  learned  that  the  North  America  was  lost  about  the 
27th  of  March,  1852,  a  circumstance  which  the  defendant  did  not 
know  of  till  about  the  20th  of  the  following  month.  The  plaintiff . 
reached  San  Juan  del  Sur  April  4,  and  remained  there  more  than  a 
month,  unsuccessfully  endeavoring  to  obtain  a  passage  to  San  Fran- 
cisco. He  then  returned  to  New  York.  His  illness  continued  till 
long  after  his  return  home. 

Under  objection  from  the  defendant's  counsel,  the  plaintiff  gave 


WILLIAMS  v.   VANDERBILT.  153 

evidence  of  representations  made  to  him  at  the  time  he  bought 
his  tickets,  by  a  person  to  whom  he  was  referred  by  the  defend- 
ant's agent,  that  the  Nicaragua  route  was  healthy.  The  plaintiff, 
also,  under  the  defendant's  counsel's  objection,  proved  that  the  route 
was  in  fact  unhealthy. 

The  complaint  contained  five  claims,  of  which  the  first  three 
simply  charged  the  defendant  with  neglect  of  his  duty  as  a  common 
carrier,  in  not  transporting  the  plaintiff.  The  last  two  also  charged 
the  defendant  with  fraud,  in  this  omission. 

At  the  close  of  the  evidence  for  the  plaintiff,  the  defendant's 
counsel  having  made  a  motion  for  a  nonsuit,  which  was  denied,  the 
judge  held  that  the  plaintiff  was  not  entitled  to  recover  on  the 
claims  for  fraud,  for  the  reason  that  the  only  misrepresentations 
charged  in  the  fourth  and  fifth  claims,  respected  the  healthfulness  of 
the  climate  on  the  isthmus,  and  it  was  not  alleged  in  either  of  those 
two  claims  that  the  plaintiff  fell  ill. 

A  motion  for  a  nonsuit  as  to  the  fourth  claim  was  denied. 

The  judge,  after  charging  the  jury  as  to  the  plaintiff's  right  of 
recovery,  instructed  them  that  if  the  plaintiff  had  lost  money  or 
health,  or  been  detained  on  the  isthmus,  or  had  his  plans  deranged  by 
reason  of  the  defendant's  breach  of  agreement,  he  should  receive  full 
compensation,  and  that  they  could  award  him  damages  for  his  loss  of 
time,  for  sickness  while  on  the  isthmus,  and  after  his  return,  pro- 
vided such  sickness  were  caused  by  the  defendant's  neglect,  or  breach 
of  duty. 

These  instructions  were  separately  excepted  to  by  the  defendant's 
counsel,  and  the  jury  found  a  verdict  in  favor  of  the  plaintiff  for 
$850  damages. 

Balcom,  J.  (after  holding  that  the  action  could  be  maintained). 
— The  evidence  that  representations  were  made  to  the  plaintiff, 
when  he  made  the  contract  for  his  passage,  as  to  the  healthfulness  of 
the  climate  on  the  isthmus,  and  to  show  that  such  representations 
were  false,  was  given  before  the  judge  decided  that  the  plaintiff 
could  not  recover  for  fraud,  under  the  fourth  or  fifth  claim  in  his 
complaint ;  and  when  he  so  decided  and  charged  the  jury  that  the 
plaintiff  could  only  recover  for  such  sickness  as  was  caused  by  the 
defendant's  neglect  or  breach  of  duty,  the  question  of  fraud  was  out 
of  the  case.  The  defendant,  therefore,  was  not  prejudiced  by  the 
evidence  that  such  false  representations  were  made  to  the  plaintiff. 

It  was  entirely  proper  for  the  judge  to  receive  evidence  as  to 
how  much  the  plaintiff  was  exposed  to  the  sun  and  rains  while  cross- 
ing the  isthmus,  and  to  show  that  the  climate  there  was  bad  and  un- 


154  CARRIERS. 

healthy,  so  that  the  jury  could  determine  whether  the  plaintiff's 
sickness  was  caused  by  the  defendant's  negligence  or  breach  of  duty. 

The  learned  judge  then  held  that  the  defendant  was  bound  by 
his  contract  to  carry  the  plaintiff  from  New  York  to  San  Francisco, 
overruling  the  cases  of  Briggs  v.  Yanderbilt  (19  Barb.  222),  and 
Bonsteel  v.  The  Same  (21  Id.  26),  so  far  as  these  cases  conflicted  with 
the  present  decision,  and  proceeded  as  follows : 

The  remarks  of  the  judge,  which  authorized  the  jury  to  award 
damages  to  the  plaintiff  for  "  derangement  of  his  plans  by  reason  of 
a  violation  by  the  defendant  of  an  arrangement  which  he  made  and 
which  he  assumed  when  he  received  the  plaintiff  on  board  his  ves- 
sel," were  somewhat  obscure.  They  were  interpreted  by  the  Su- 
preme Court  to  mean  that  the  jury  might  award  damages  to  the 
plaintiff  for  breaking  up  his  journey,  rendering  it  necessary  for  him 
to  return.  But  this  court  cannot  determine  whether  those  remarks 
were  right  or  wrong,  because  no  exception  was  taken  to  them  by 
the  defendant's  counsel. 

The  time  the  plaintiff  lost  by  reason  of  his  detention  on  the 
isthmus ;  his  expenses  there,  and  of  his  return  to  New  York  ;  the 
time  he  lost  by  reason  of  his  sickness  after  he  returned  home  ;  and 
the  expense  of  such  sickness,  so  far  as  the  same  were  occasioned  by 
the  defendant's  negligence  or  breach  of  duty,  were  legitimate  and  le- 
gal damages  which  the  plaintiff  was  entitled  to  recover.  He  could  not 
procure  a  passage  from  San  Juan  del  Sur  to  San  Francisco,  and  there- 
fore had  the  right  to  return  to  New  York  and  his  home.  If  one  of 
the  plaintiff's  limbs  had  been  broken,  through  the  carelessness  of  the 
agents  or  servants  of  the  defendants,  it  is  settled  that  he  could  have 
recovered  the  expenses  of  the  sickness  occasioned  thereby,  and  for 
the  consequent  loss  of  time ;  and  also  compensation  for  the  bodily 
pain  and  suffering  caused  by  such  breaking  of  his  limb  (15  N.  Y. 
Eep.  415  ;  18  Id.  534). 

The  principle  on  which  a  recovery,  in  such  a  case,  is  allowed  for 
bodily  pain  or  suffering,  loss  of  time  and  expenses,  sustains  the  re- 
covery, in  this  case,  for  the  plaintiff's  loss  of  health  and  loss  of  time, 
and  his  expenses  during  his  sickness.  And  that  the  plaintiff  could 
recover  back  the  $250  he  paid  to  be  carried  from  New  York  to  San 
Francisco,  and  his  expenses  while  unnecessarily  detained  upon  the 
isthmus,  and  the  expenses  of  his  journey  from  there  back  to  New 
York,  admits  of  no  doubt,  if  the  defendant,  by  the  exercise  of 
proper  diligence,  could  have  carried  him  to  San  Francisco  before  he 
left  San  Juan  del  Sur ;  or  if  his  long  detention  on  the  isthmus  and 
subsequent  return  to  New  York  were  justly  imputable  to  the  de- 


H0BB3   v.   THE  LONDON  AND  SOUTH  WESTERN  RAILWAY  CO.     155 

fendant's  neglect  of  duty  to  him.  But  I  will  not  discuss  these 
questions  further. 

My  conclusion  is  that  no  error  was  committed  on  the  trial  which 
entitles  the  defendant  to  a  new  trial ;  and  that  the  judgment  of  the 
Supreme  Court  should  be  affirmed  with  costs. 

Rosekrans  and  Marvin,  JJ.,  expressed  no  opinion. 

All  the  other  judges  concurring. 

Judgment  affirmed. 


Carrier  of  Passengers  ;  Railway  Company  ;  Breach  of  Con- 
tract of  Carriage  ;  Personal  Inconvenience  as  a  Ground 
of  Damage. 


[1875.]      HOBBS  AND   WlFE   V.    THE   LONDON   AND  SOUTH  WEST- 
ERN Railway  Company  (L.  R.  10  Q  B.  111). 

The  plaintiff,  with  his  wife,  and  two  children  of  five  and  seven  years  old  respectively, 
took  tickets  on  the  defendants'  railway  from  Wimbledon  to  Hampton  Court,  by  the 
midnight  train.  They  got  into  the  train,  but  it  did  not  go  to  Hampton  Court,  but 
went  along  the  other  branch  to  Esher,  where  the  party  were  compelled  to  get  out. 
It  being  so  late  at  night  the  plaintiff  was  unable  to  get  a  conveyance  or  accommoda- 
tion at  an  inn,  and  the  party  walked  to  the  plaintiff's  house,  a  distance  of  between 
four  and  five  miles,  where  they  arrived  at  about  three  in  the  morning.  It  was  a 
drizzling  night,  and  the  wife  caught  cold,  and  was  laid  up  for  some  time,  being  un- 
able to  assist  her  husband  in  his  business  as  before,  and  expenses  were  incurred  for 
medical  attendance. 

In  an  action  to  recover  damages  for  the  breach  of  contract,  the  jury  gave  28?.  damages, 
viz.,  81.  for  the  inconvenience  suffered  by  having  to  walk  home ;  and  20/.  for  the 
wife's  illness  and  its  consequences. 

Held,  as  to  the  8/.,  that  the  plaintiff  was  entitled  to  damages  for  the  inconvenience  suf- 
fered in  consequence  of  being  obliged  to  walk  home ;  but  a3  to  the  20/.,  that  the  ill- 
ness and  its  consequences  were  too  remote  from  the  breach  of  contract  for  it  to  be 
given  as  damages  naturally  resulting  from  it. 

First  count,  by  Samuel  Hobbs  and  Elizabeth  his  wife,  that  the 
plaintiff  Elizabeth  became  a  passenger  in  one  of  defendants'  carriages, 
to  be  by  them  carried  from  Wimbledon  to  Hampton  Court  by  a  train 
which  defendants  represented  was  about  to  proceed  to  Hampton 
Court,  and  it  thereupon  became  the  duty  of  defendants  to  carry  her 
thither,  but  they  carried  her  in  another  direction,  viz.,  to  Esher  sta- 


156  CARRIERS. 

tion,  far  distant  from  Hampton  Court  station,  and  there  left  her, 
whereby  the  plaintiff  Elizabeth  was  prevented  reaching  her  home  for 
a  long  time,  and  put  to  and  suffered  great  exposure,  inconvenience, 
and  fatigue,  and  suffered  much  in  mind  and  body,  and  has  been  un- 
able to  attend  to  domestic  affairs,  and  business,  and  to  her  children. 
Claim,  3001. 

Second  count,  that  Samuel  Hobbs  lost  and  was  deprived  of  the 
comfort  and  services  of  his  wife,  and  was  put  to  great  expense  in 
nursing  and  medical  attendance  on  his  wife,  by  reason  of  the  prem- 
ises in  the  first  count  mentioned.     Claim,  100Z.* 

Plea :  payment  of  21.  into  court. 

Replication  :  damages  ultra.     Issue  joined. 

At  the  trial,  before  Kelly,  C.  B.,  at  the  Kingston  spring  assizes, 
1874,  it  appeared  in  evidence  that  the  plaintiff  lived  at  New  Hamp- 
ton. On  the  12th  of  August,  he  took  second-class  tickets  for  him- 
self, his  wife,  and  two  children  of  five  and  seven  years  old  respect- 
ively, at  the  Wimbledon  station  on  the  defendants'  railway  to  Hamp- 
ton Court  station,  by  the  midnight  train.  They  took  their  places  in 
the  train,  but  it  turned  out  that  the  train  went  on  the  other  branch ; 
and  the  plaintiff's  party  were  therefore  obliged  to  get  out  at  Esher 
station,  which  was  between  four  and  live  miles  from  the  plaintiff's 
house,  and  further  from  it  than  the  Hampton  Court  station  is  by  two 
or  three  miles.  The  plaintiff  was  unable  to  get  a  conveyance  or  ac- 
commodation at  an  inn,  where  he  knocked  in  vain.  The  party  were, 
therefore,  obliged  to  walk  home,  where  they  arrived  at  about  three 
in  the  morning.  It  was  a  drizzling  wet  night,  and  the  wife,  caught 
cold,  and  was  laid  up  for  some  time,  being  unable  to  assist  her  hus- 
band in  his  business  as  before,  and  expenses  were  incurred  for  med- 
ical attendance. 

In  answer  to  questions  by  the  Chief  Baron,  the  jury  found  SI.  as 
damages  for  the  inconvenience  suffered  by  the  plaintiffs  in  being 
obliged  to  walk  home ;  and  201.  in  respect  of  the  wife's  illness  and 
its  consequences ;  a  verdict  accordingly  passed  for  the  plaintiffs  for 
281.  beyond  the  21.  paid  into  court,  leave  being  reserved  to  move  to 
reduce  the  verdict  by  the  SI.  and  201.,  or  either,  if  the  court  should 
be  of  opinion  that  the  plaintiffs  were  not  entitled  to  both  or  either 
of  those  sums. 

Cockburn,  C.  J. — We  are  of  opinion  that  this  rule  should  be 
made  absolute  as  regards  the  201.  damages  given  in  respect  of  the 
consequences  of  the  wife  having  caught  cold  in  this  walk  from  Esher 

*  The  precise  form  of  the  two  counts  appears  to  have  escaped  notice. 


HOBBS   v.   THE  LONDON  AND  SOUTH  WESTERN  RAILWAY  CO.     157 

to  Hampton  ;  but  that  it  should  be  discharged  as  regards  the  SI.  in 
respect  to  the  personal  inconvenience  suffered  by  the  husband  and 
the  wife  in  consequence  of  their  not  being  taken  to,  or  put  down  at 
their  proper  place  of  destination. 

The  facts  are  simple.  The  plaintiffs  took  tickets  to  be  conveyed 
from  the  Wimbledon  station  of  the  defendants'  railway  to  Hampton 
Court.  It  so  happened  that  the  train  did  not  go  to  Hampton  Court, 
and  the  plaintiffs  were  taken  on  to  Esher  station,  which  increased 
the  distance  which  they  would  have  to  go  from  the  railway  station 
to  their  home  by  two  or  three  miles. 

Damages  were  asked  for  upon  two  grounds  :  first,  for  the  incon- 
venience that  the  husband  and  wife,  with  their  two  children,  sus- 
tained by  having  to  go  this  distance,  the  night  happening  to  be  a 
wet  night ;  in  the  second  place,  damages  were  asked  by  reason  of  the 
wife,  from  her  exposure  to  the  wet  on  that  night,  getting  a  bad  cold 
and  being  ill  in  health,  the  consequence  of  which  was  that  some  ex- 
pense was  incurred  in  medical  attendance  upon  her.  We  think  these 
two  heads  of  damage  must  be  kept  distinct,  and  I  propose  to  deal 
with  them  as  distinct  subjects. 

With  regard  to  the  first,  there  can  be  no  doubt  whatever  upon 
the  facts  that  the  plaintiffs  were  put  to  personal  inconvenience :  they 
had  to  walk  late  at  night,  after  12  o'clock,  a  considerable  distance, 
the  wife  suffered  fatigue  from  it,  and  they  had  to  carry  their  chil- 
dren, or  to  get  them  along  with  great  difficulty,  the  children  being 
fatigued  and  exhausted ;  and  there  is  no  doubt  that  there  was  per- 
sonal inconvenience  suffered  by  the  party  on  that  occasion,  and  that 
inconvenience  was  the  immediate  consequence  and  result  of  the 
breach  of  contract  on  the  part  of  the  defendants.  The  plaintiffs  did 
their  best  to  diminish  the  inconvenience  to  themselves  by  having  re- 
course to  such  means  as  they  hoped  to  find  at  hand  ;  they  tried  to 
get  into  an  inn,  which  they  were  unable  to  do  ;  they  tried  to  get  a 
conveyance ;  they  were  informed  none  was  to  be  had ;  and  they  had 
no  alternative  but  to  walk  ;  and  therefore  it  was  from  no  default  on 
their  part,  and  it  cannot  be  doubted  that  the  inconvenience  was  the 
immediate  and  necessary  consequence  of  the  breach  of  the  defend- 
ants' contract  to  convey  them  to  Hampton  Court.  Now,  inasmuch 
as  there  was  manifest  personal  inconvenience,  I  am  at  a  loss  to  see 
why  that  inconvenience  should  not  be  compensated  by  damages  in 
such  an  action  as  this.  It  has  been  endeavored  to  be  argued,  upon 
principle  and  upon  authority,  that  this  was  a  kind  of  damage  which 
could  not  be  supported  ;  and  attempts  were  also  made  to  satisfy  us  that 
this  supposed  inconvenience  was  more  or  less  imaginary,  and  would 


158  CARRIERS. 

depend  upon  the  strength  and  constitution  of  the  parties,  and  various 
other  circumstances ;  and  that  it  is  not  to  be  taken  that  a  walk  of  so 
many  additional  miles  would  be  a  thing  that  a  person  would  dislike 
or  suffer  inconvenience  from  ;  and  that  there  may  be  circumstances 
under  which  a  walk  of  several  miles,  so  far  from  being  matter  of  in- 
convenience, would  be  just  the  contrary.  All  that  depends  on  the 
actual  facts  of  each  individual  case ;  and  if  the  jury  are  satisfied  that 
in  the  particular  instance  personal  inconvenience  or  suffering  has 
been  occasioned,  and  that  it  has  been  occasioned  as  the  immediate 
effect  of  the  breach  of  the  contract,  I  can  see  no  reasonable  principle 
why  that  should  not  be  compensated  for.  The  case  of  Hamlin  v. 
Great  Northern  Eailway  Co.  (1  H.  &  N.  408 ;  26  L.  J.  Ex.  20)  was 
cited  as  an  authority  to  show  that  for  personal  inconvenience  dam- 
ages ought  not  to  be  awarded.  That  case  appears  to  me  to  fall  far  short 
of  any  such  proposition.  It  merely  seems  to  amount  to  this :  that 
where  a  party,  by  not  being  able  to  get  to  a  place  which  he  would 
otherwise  have  arrived  at  in  time  to  meet  persons  with  whom  he  had 
appointments,  had  sustained  pecuniary  loss,  that  is  too  remote  to  be 
made  the  subject  of  damages  in  an  action  upon  a  breach  of  contract. 
That  may  be  perfectly  true,  because,  as  in  every  one  of  the  instances 
cited,  you  would  have  to  go  into  the  question  whether  there  was  a 
loss  arising  from  the  breach  of  contract,  before  you  could  assess  that 
loss.  And,  after  all,  if  the  true  principle  be  laid  down  in  Hadley  v. 
Baxendale  (9  Ex.  341 ;  23  L.  J.  Ex.  179),  the  damage  must  be 
something  which  is  in  the  contemplation  of  the  parties  as  likely  to 
result  from  a  breach  of  contract ;  and  it  is  impossible  that  a  com- 
pany who  undertake  to  carry  a  passenger  to  a  place  of  destination 
can  have  in  their  minds  all  the  circumstances  which  may  result  from 
the  passenger  being  detained  on  the  journey.  As  far  as  the  case  of 
Hamlin  v.  Great  Northern  Eailway  Co.  (1  H.  &  N.  408 ;  26  L.  J. 
Ex.  20)  goes,  I  am  far  from  saying  it  was  a  wrong  decision  ;  but  it  did 
not  decide  that  personal  inconvenience,  however  serious,  was  not  to 
be  taken  into  account  as  a  subject-matter  of  damage  in  a  breach  of 
contract  of  a  carrier  to  convey  a  person  to  a  particular  destination. 
If  it  did,  I  should  not  follow  that  authority  ;  but  I  do  not  think  it 
applicable  to  this  case  at  all.  I  think  there  is  no  authority  that  per- 
sonal inconvenience,  where  it  is  sufficiently  serious,  should  not  be  the 
subject  of  damages  to  be  recovered  in  an  action  of  this  kind.  There- 
fore, on  the  first  head,  the  81.,  I  think  the  verdict  ought  to  stand. 

With  regard  to  the  second  head  of  damage,  the  case  assumes  a 
very  different  aspect.  I  see  very  great  difficulty  indeed  in  coming 
to  any  other  conclusion  than  that  the  20/.  is  not  recoverable ;  and 


H0BB3  v.   THE  LONDON  AND  SOUTH  WESTERN  RAILWAY  CO.     15& 

when  we  are  asked  to  lay  down  some  principle  as  a  guiding  rule  in 
all  such  cases,  I  quite  agree  with  my  brother  Blackburn  in  the  in- 
finite difficulty  there  would  be  in  attempting  to  lay  down  any  principle 
or  rule  which  shall  cover  all  such  cases  ;  but  I  think  that  the  nearest 
approach  to  anything  like  a  fixed  rule  is  this  :  That  to  entitle  a  per- 
son to  damages  by  reason  of  a  breach  of  contract,  the  injury  for 
which  compensation  is  asked  should  be  one  that  may  be  fairly  taken 
to  have  been  contemplated  by  the  parties  as  the  possible  result  of  the 
breach  of  contract.  Therefore  you  must  have  something  imme- 
diately flowing  out  of  the  breach  of  contract  complained  of,  some- 
thing immediately  connected  with  it,  and  not  merely  connected  with 
it  through  a  series  of  causes  intervening  between  the  immediate  con- 
sequence of  the  breach  of  contract  and  the  damage  or  injury  com- 
plained of.  To  illustrate  that  I  cannot  take  a  better  case  than  the 
one  now  before  us  :  Suppose  that  a  passenger  is  put  out  at  a  wrong 
station  on  a  wet  night  and  obliged  to  walk  a  considerable  distance  in 
the  rain,  catching  a  violent  cold  which  ends  in  a  fever,  and  the  pas- 
senger is  laid  up  for  a  couple  of  months,  and  loses  through  this  ill- 
ness the  offer  of  an  employment  which  would  have  brought  him  a 
handsome  salary.  No  one,  I  think,  who  understood  the  law,  would 
say  that  the  loss  so  occasioned  is  so  connected  with  the  breach  of 
contract  as  that  the  carrier  breaking  the  contract  could  be  held  lia- 
ble. Here,  I  think,  it  cannot  be  said  the  catching  cold  by  the 
plaintiff's  wife  is  the  immediate  and  necessary  effect  of  the  breach 
of  contract,  or  was  one  which  could  be  fairly  said  to  have  been  in 
the  contemplation  of  the  parties.  As  my  brother  Blackburn  points 
out,  so  far  as  the  inconvenience  of  the  walk  home  is  concerned,  that 
must  be  taken  to  be  reasonably  within  the  contemplation  of  the  par- 
ties ;  because,  if  a  carrier  engages  to  put  a  person  down  at  a  given 
place,  and  does  not  put  him  down  there,  but  puts  him  down  some- 
where else,  it  must  be  in  the  contemplation  of  everybody  that  the 
passenger  put  down  at  the  wrong  place  must  get  to  the  place  of  his 
destination  somehow  or  other.  If  there  are  means  of  conveyance 
for  getting  there,  he  may  take  those  means  and  make  the  company 
responsible  for  the  expense ;  but  if  there  are  no  means,  I  take  it  to 
be  law  that  the  carrier  must  compensate  him  for  the  personal  incon- 
venience which  the  absence  of  those  means  has  necessitated.  That 
flows  out  of  the  breach  of  contract  so  immediately  that  the  damage 
resulting  must  be  admitted  to  be  fair  subject-matter  of  damages. 
But  in  this  case  the  wife's  cold  and  its  consequences  cannot  stand 
upon  the  same  footing  as  the  personal  inconvenience  arising  from 
the  additional  distance  which  the  plaintiffs  had  to  go.     It  is  an  effect 


160  CARRIERS. 

of  the  breach  of  contract  in  a  certain  sense,  but  removed  one  stage  ; 
it  is  not  the  primary  but  the  secondary  consequence  of  it ;  and  if  in 
such  a  case  the  party  recovered  damages  by  reason  of  the  cold  caught 
incidentally  on  that  foot  journey,  it  would  be  necessary,  on  the  prin- 
ciple so  applied,  to  hold  that  in  the  two  cases  which  have  been  put 
in  the  course  of  the  discussion,  the  party  aggrieved  would  be  equally 
entitled  to  recover.  And  yet  the  moment  the  cases  are  stated,  every- 
body would  agree  that,  according  to  our  law,  the  parties  are  not  en- 
titled to  recover.  I  put  the  case  :  Suppose  in  walking  home,  on  a 
dark  night,  the  plaintiff  made  a  false  step  and  fell  and  broke  a  limb, 
or  sustained  bodily  injury  from  the  fall,  everybody  would  agree  that 
that  is  too  remote,  and  is  not  the  consequence  which,  reasonably 
speaking,  might  be  anticipated  to  follow  from  the  breach  of  contract. 
A  person  might  walk  a  hundred  times,  or  indeed  a  great  many  more 
times,  from  Esher  to  Hampton  without  falling  down  and  breaking  a 
limb ;  therefore  it  could  not  be  contended  that  that  could  have  been 
anticipated  as  the  likely  and  the  probable  consequence  of  the  breach 
of  contract.  Again,  the  party  is  entitled  to  take  a  carriage  to  his 
home.  Suppose  the  carriage  overturns  or  breaks  down,  and  the 
party  sustains  bodily  injury  from  either  of  those  causes,  it  might  be 
said  :  "  If  you  had  put  me  down  at  my  proper  place  of  destination, 
where  by  your  contract  you  engaged  to  put  me  down,  I  should  not 
have  had  to  walk  or  to  go  from  Esher  to  Hampton  in  a  carriage,  and 
I  should  not  have  met  with  the  accident  in  the  walk  or  in  the  car- 
riage." In  either  of  those  cases  the  injury  is  too  remote,  and  I  think 
that  is  the  case  here ;  it  is  not  the  necessary  consequence,  it  is  not 
even  the  probable  consequence  of  a  person  being  put  down  at  an  im- 
proper place,  and  having  to  walk  home,  that  he  should  sustain  either 
personal  injury  or  catch  a  cold.  That  cannot  be  said  to  be  within 
the  contemplation  of  the  parties,  so  as  to  entitle  the  plaintiff  to  re- 
cover, and  to  make  the  defendants  liable  to  pay  damages  for  the  con- 
sequences. Therefore,  as  regards  the  damages  awarded  in  respect  of 
the  wife's  cold,  the  rule  must  be  made  absolute  to  reduce  the  dam- 
ages by  that  amount. 

Blackburn,  J. — I  am  of  the  same  opinion.  I  think  the  rule 
should  be  made  absolute  to  reduce  the  damages  to  SI.  beyond  the  21. 
paid  into  court,  but  should  not  be  made  absolute  any  further.  The 
action  is  in  reality  upon  a  contract  ;  it  is  commonly  said  to  be 
founded  upon  a  duty,  but  it  is  a  duty  arising  out  of  a  contract.  It 
is  a  contract  by  which  the  railway  company  had  undertaken  to  carry 
four  persons  to  Hampton  Court,  and  in  fact  that  contract  was 
broken  when  they  landed  the  passengers  at  Esher,  instead  of  Hamp- 


HOBBS  r.  THE  LONDON  AND  SOUTH  WESTERN  RAILWAY  CO.  161 

ton  Court.  The  contract  was  to  supply  a  conveyance  to  Hampton 
Court,  and  it  was  not  supplied.  Where  there  is  a  contract  to  supply 
a  thing  and  it  is  not  supplied,  the  damages  are  the  difference  be- 
tween that  which  ought  to  have  been  supplied  and  that  which  you 
have  to  pay  for,  if  it  be  equally  good  ;  or  if  the  thing  is  not  obtain- 
able, the  damages  would  be  the  difference  between  the  thing  which 
you  ought  to  have  had  and  the  best  substitute  you  can  get  upon  the 
occasion  for  the  purpose.  It  was  urged,  upon  the  authority  of  Ham- 
lin v.  Great  Northern  Eailway  Co.  (1  H.  &  N.  408  ;  26  L.  J.  Ex.  20), 
that  that  did  not  apply  to  the  present  case,  and  it  was  contended 
that — though,  when  the  plaintiff  was  at  Esher,  if  he  had  been  able  to 
hire  a  fly  or  obtain  a  carriage,  and  paid  money  for  it,  it  was  admitted 
he  could  recover  that  money — yet,  inasmuch  as  he  could  get  no  car- 
riage, and  was  compelled  to  walk  under  penalty  of  staying  where  he 
was  all  night,  he  was  not  entitled  to  get  anything ;  and  Hamlin  v. 
Great  Northern  Railway  Co.  (1  H.  &  N.  408 ;  26  L.  J.  Ex.  20)  was 
cited  as  an  authority  for  that.  Now,  as  I  have  said,  what  the  pas- 
senger is  entitled  to  recover  is  the  difference  between  what  he  ought 
to  have  had  and  what  he  did  have ;  and  when  he  is  not  able  to  get  a 
conveyance  at  all,  but  has  to  make  the  journey  on  foot,  I  do  not  see 
how  you  can  have  a  better  rule  than  that  which  the  learned  judge 
gave  to  the  jury  here,  namely,  that  the  jury  were  to  see  what  was 
the  inconvenience  to  the  plaintiffs  in  having  to  walk,  as  they  could 
not  get  a  carriage.  Taking  that  view  they  were  certainly  entitled  to 
recover  for  that,  and  if  it  had  been  left  to  me,  I  am  not  sure  whether 
or  not  I  should  have  given  81.  more  than  the  21.  paid  into  court ;  but 
that  is  not  the  question  for  us.  The  question  for  us  is  whether  the 
plaintiffs  are  entitled  to  recover  anything.  I  am  of  opinion  that  they 
are.  In  Hamlin  v.  Great  Northern  Railway  Co.  (1  H.  &  N.  408  ; 
26  L.  J.  Ex.  20)  there  was  no  inconvenience  at  all.  The  plaintiff 
was  going  to  Hull ;  he  was  obliged  to  stop  at  Grimsby  for  the  night, 
and  went  on  to  Hull  the  next  day.  "What  he  sought  in  the  action 
was  to  recover  damages  for  the  loss  of  his  appointments  which  he 
had  with  customers.  That  was  held  to  be  too  remote,  and  it  was 
held  he  was  only  entitled  to  5s.,  though  I  must  say  I  do  not  know 
how  that  amount  was  arrived  at.  The  inconvenience  he  did  suffer 
in  sleeping  at  Grimsby  instead  of  Hull  seems  really  to  be  nothing, 
and  there  was  no  substantial  ground  on  which  he  could  have  re- 
covered. I  do  not  understand  from  the  ruling  of  the  judges  in  that 
case  that  they  held  that  nothing  can  be  recovered  except  where 
there  has  been  money  disbursed  ;  if  the  case  decided  any  such  thing, 
I  think  the  case  of  Burton  v.  Pinkerton  (Law  Rep.  2  Ex.  340)  would 
11 


162  CARRIERS. 

be  precisely  the  other  way  ;  for  there  the  plaintiff  was  left  at  Rio, 
and  all  the  members  of  the  court  thought  he  was  entitled  to  some- 
thing for  the  inconvenience  of  being  left  there  ;  the  point  on  which 
they  differed  was  whether  a  jury  could  take  into  consideration  the 
claim  for  damages  for  being  imprisoned  there  ;  and  the  majority  of 
the  court  thought  they  could  not.  Therefore,  on  the  first  head  of 
damages  in  this  case,  I  do  not  see  that  we  can  cut  down  the  dam- 
ages  below  what  the  jury  have  found. 

Tli en  comes  the  further  question,  whether  the  damages  for  the 
illness  of  the  wife  are  recoverable  ;  I  think  they  are  not,  because 
they  are  too  remote.  On  the  principle  of  what  is  too  remote,  it  is 
clear  enough  that  a  person  is  to  recover  in  the  case  of  a  breach  of 
contract  the  damages  directly  proceeding  from  that  breach  of  con- 
tract and  not  too  remotely.  Although  Lord  Bacon  had,  long  ago, 
referred  to  this  question  of  remoteness,  it  has  been  left  in  very  great 
vagueness  as  to  what  constitutes  the  limitation ;  and  therefore  I 
agree  with  what  my  lord  has  said  to-day,  that  you  make  it  a  little 
more  definite  by  saying  such  damages  are  recoverable  as  a  man  when 
making  the  contract  would  contemplate  would  flow  from  a  breach  of 
it.  For  my  own  part,  I  do  not  feel  that  I  can  go  further  than  that. 
It  is  a  vague  rule,  and  as  Bramwell,  B.,  said,  it  is  something  like 
having  to  draw  a  line  between  night  and  day  ;  there  is  a  great  dura- 
tion of  twilight  when  it  is  neither  night  nor  day  ;  but  on  the  ques- 
tion now  before  the  court,  though  you  cannot  draw  the  precise  line, 
you  can  say  on  which  side  of  the  line  the  case  is ;  I  do  not  see  the 
analogy  between  this  case  and  the  case  that  was  suggested,  where  a 
railway  company  made  a  contract  to  carry  a  passenger,  and  from 
want  of  reasonable  care  they  dashed  that  passenger  down  and  broke 
his  leg,  and  he  recovers  damages  from  them.  For  such  a  breach  as 
that,  the  most  direct,  immediate  consequence  is,  that  he  would  be 
lamed.  That  is  the  direct  consequence  of  such  a  breach  of  contract ; 
but  though  here  the  contract  is  the  same,  a  contract  to  carry  the  pas- 
senger, the  nature  of  the  breach  is  quite  different ;  the  nature  of  the 
breach  is  simply  that  they  did  not  carry  the  plaintiff  to  his  destina- 
tion, but  left  him  at  Esher.  To  illustrate  this — suppose  you  expand 
the  declaration  and  say :  You,  the  defendants,  contracted  to  carry 
me  safely  to  Hampton  Court,  you  negligently  upset  the  carriage  and 
dashed  me  on  the  ground,  whereby  I  became  ill  and  sick.  That  is  a 
clear  and  immediate  consequence.  The  other  case  is :  You  con- 
tracted to  carry  me  to  Hampton  Court,  you  went  to  Esher,  and  put 
me  down  there,  by  which  I  was  obliged  to  get  other  means  of  con- 
veyance, for  the  purpose  of  getting  to  Hampton  Court ;  and  because 


HOBBS   v.   THE  LONDON  AND  SOUTH  WESTERN  RAILWAY  CO.     1G3 

I  could  find  no  fly  or  other  conveyance,  I  was  obliged,  as  the  only 
means  of  getting  to  Hampton,  to  walk  there,  and  because  it  was  a 
cold  and  wet  night,  I  caught  cold  and  I  became  ill.  When  it  is  put 
in  that  way,  there  are  many  causes  or  stages  which  there  are  not  in 
the  other. 

With  regard  to  the  two  instances  my  lord  put — one,  of  the  pas- 
senger, when  walking  home  in  the  dark,  stumbling  and  breaking  his 
leg,  the  other,  of  his  hiring  a  carriage,  and  the  carriage  breaking- 
down — I  must  say  I  think  they  are  on  the  remote  side  of  the  line, 
and  further  from  it  than  the  present  case.  I  do  not  think  it  is  any 
one's  fault  that  it  cannot  be  put  more  definitely  ;  I  think  it  must  be 
left  as  vague  as  ever,  as  to  where  the  line  must  be  drawn ;  but  I 
think  in  each  case  the  court  must  say  whether  it  is  on  the  one  side 
or  the  other ;  and  I  do  not  think  that  the  question  of  remoteness 
ought  ever  to  be  left  to  a  jury  ;  that  would  be  in  eifect  to  say  that 
there  shall  be  no  such  rule  as  to  damages  being  too  remote  ;  and  it 
would  be  highly  dangerous  if  it  was  to  be  left  generally  to  the  jury 
to  say  whether  the  damage  was  too  remote  or  not. 

I  think,  therefore,  the  rule  ought  to  be  made  absolute  to  reduce 
the  damages  to  the  81.  beyond  the  21. 

Melloe,  J. — I  am  entirely  of  the  same  opinion.  I  quite  agree 
with  my  brother  Pabby,  that  for  the  mere  inconvenience,  such  as 
annoyance  and  loss  of  temper,  or  vexation,  or  for  being  disappointed 
in  a  particular  thing  which  you  have  set  your  mind  upon,  without 
real  physical  inconvenience  resulting,  you  cannot  recover  damages. 
That  is  purely  sentimental,  and  not  a  case  where  the  word  incon- 
venience, as  I  here  use  it,  would  apply.  But  I  must  say,  if  it  is  a 
fact  that  you  arrived  at  a  place  where  you  did  not  intend  to  go  to, 
where  you  are  placed,  by  reason  of  the  breach  of  contract  of  the  car- 
riers, at  a  considerable  distance  from  your  destination,  the  case  may 
be  otherwise.  It  is  admitted  that  if  there  be  a  carriage  you  may 
hire  it  and  ride  home  and  charge  the  expense  to  the  defendants.  The 
reason  why  you  may  hire  a  carriage  and  charge  the  expense  to  the 
company  is  with  the  view  simply  of  mitigating  the  inconvenience  to 
which  you  would  otherwise  be  subject ;  so  that  where  the  incon- 
venience is  real  and  substantial,  arising  from  being  obliged  to  walk 
home,  I  cannot  see  why  that  should  not  be  capable  of  being  assessed 
as  damages  in  respect  of  inconvenience. 

With  regard  to  the  other  point,  I  confess  I  should  have  felt  great 
alarm  if  we  had  been  driven  to  say  that  the  damages  resulting  from 
the  cold  caught  by  the  wife  upon  the  occasion  in  question  ought  to 
have  been  taken  into  consideration  by  the  jury.     I  should  have  felt 


161  CARRIERS. 

alarm  at  the  extent  to  which  that  might  be  applied.     Therefore  I 
think  it  is  necessary  to  see  whether  there  is  a  rule  applicable  to  such 
a  case,  so  that  we  can  divide  the  damages  by  the  measure  of  incon- 
venience suffered  on  the  one  side,  and  by  the  fact  that  they  are  too 
remote  on  the  other.     Now,  what  "Wilde,  B.,  said,  in  the  case  of  Gee 
v.  Lancashire  &  Yorkshire  Eailway  Co.  (6  H.  &  N.  220 ;  30  L.  J. 
Ex.  11)  is,  I  am  disposed  to  think,  as  far  as  it  goes,  the  rule  appli- 
cable to  the  present  case.     He  says :  "  The  damage,  which  as  a  mat- 
ter of  law  must  be  considered  as  the  measure  of  damages,  is  such  as 
arises  naturally," — I  would  qualify  that  by  adding  the  words  "  and 
directly,"  and  with  that  qualification  I  think  it  is  strictly  applicable 
— "  such  as  arises  naturally  and  directly  from  the  breach  of  contract, 
or  such  as  both  parties  might  reasonably  have  expected  to  result 
from  a  breach  of  the  contract."     In  this  case  it  so  happened  accident- 
ally that  the  night  in  question  was  a  wet  night,  and  the  incon- 
venience sustained  was  greater  than  it  would  have  been  on  any  other 
night.     That  is  an  accident,  and  the  catching  cold  is  an  accident. 
You  might  just  as  well  say  that,  if,  in  the  walk  home,  the  plaintiff's 
wife  had  put  her  foot  into  a  pool  of  water,  and  she  had  neglected 
wThen  she  got  home  to  prevent  the  common  result  of  that,  namely, 
catching  cold,  the  company  are  to  be  liable.     To  say  that  what  acci- 
dentally arises,  although  arising  from  the  particular  breach  of  con- 
tract or  the  particular  cause,  is  always  to  be  recoverable  as  a  measure 
of  damages,  would  be  to  lay  down  a  very  dangerous  rule.     My  lord 
and  my  brother  Blaokbukn  have  said  that  we  cannot  lay  down  a  rule 
as  applicable  to  all  cases,  and  Wilde,  B.,  says,  when  the  matter  came 
to  be  further  considered,  it  would  turn  out  the  rule  as  to  the  measure 
of  legal  damages  was  not  applicable  in  all  cases.     There  might  be 
circumstances  which  would  take  it  out  of  the  strict  rule  laid  down  in 
Hadley  v.  Baxendale  (9  Ex.  341  ;  23  L.  J.  Ex.  179),  and  leave  it  as  a 
matter  of  some  uncertainty. 

In  this  case  I  come  to  the  same  conclusion  as  my  lord  and  my 
brother  Blackburn,  that  the  rule  must  be  made  absolute  to  reduce 
the  damages  to  the  SI.  beyond  the  2/.  paid  into  court. 

Archibald,  J. — I  am  of  the  same  opinion.  I  concur  in  the  ob- 
servations which  have  been  made  by  my  lord  and  my  learned  brothers, 
and  I  would  only  add,  without  expressing  anything  in  the  form  of 
a  rule,  that  in  case  of  breach  of  contract,  the  party  breaking  the  con- 
tract must  be  held  liable  for  the  proximate  and  probable  consequences 
of  such  breach,  that  is,  such  as  might  have  been  fairly  in  the  con- 
templation of  the  parties  at  the  time  the  contract  was  entered  into. 
Therefore,  as  to  the  first  head  of  damage,  the  inconvenience  of  walk- 


HAMILTON   v.   McPHERSON.  1G5 

ing  to  Hampton,  I  think  there  can  be  no  donbt  that  is  such  an  incon- 
venience as  the  parties  must  have  contemplated  would  arise  from  the 
breach  of  the  contract  ;  and  that,  as  it  appears  to  me,  is  an  incon- 
venience capable  of  being  estimated  in  a  pecuniary  way.  It  is  ad- 
mitted, if  there  had  been  means  of  conveyance  and  the  plaintiffs  had 
availed  themselves  of  those  means  of  conveyance,  they  would  have 
been  entitled  to  a  measure  of  damages  for  that  expense.  I  think 
there  is  no  difficulty  in  applying  to  the  inconvenience  which  has 
been  suffered  a  pecuniary  measure  of  damages.  The  case  is  not  one 
of  mere  vexation,  but  it  is  one  of  physical  inconvenience,  which  can 
in  a  sense  be  measured  by  money  value,  and  the  parties  here  had  the 
fair  measure  of  that  inconvenience  in  the  damages  given  by  the  jury. 

With  regard  to  the  other  head,  I  agree  in  the  opinion  already  ex- 
pressed by  my  lord  and  my  learned  brothers,  that  that  is  too  remote. 
That  does  not  fall  within  the  same  category.  With  regard  to  what 
might  be  the  result  of  the  walk  home,  the  wet  night,  the  condition 
of  health,  the  state  of  the  plaintiff  herself,  all  those  things  could  not 
have  been  in  the  contemplation  of  the  parties  when  they  made  the 
contract.  I  think,  therefore,  that  this  does  fall  beyond  the  line. 
Without  saying  anything  further,  I  think  it  is  too  remote.  The  rule 
must  therefore  be  made  absolute  to  reduce  the  verdict  to  87.  beyond 
the  27. 

Rule  accordingly. 


Direct  Loss ;   Injury  from  Carrier's  Delay  ;   Duty  of  the 
Other  Party. 


[1863.]  Hamilton  v.  McPherson  (28  N.  Y.  72). 

Damages  for  breaches  of  contract  are  those  only  which  are  incidental  to,  aDd  directly- 
caused  by,  the  breach,  and  which  may  reasonably  be  presumed  to  have  entered  into 
the  contemplation  of  the  parties,  and  are  not  speculative  profits,  or  accidental  or 
consequential  losses. 

The  law  imposes  upon  a  party  subjected  to  injury  from  a  breach  of  contract  by  the  other 
party,  the  active  duty  of  making  reasonable  exertions  to  render  the  injury  as  light 
as  possible.  And  if  the  injured  party,  through  negligence  or  willfulness,  allows  the 
damages  to  be  unnecessarily  enhanced,  the  increa-ed  lo-s  ju-tly  falls  upon  him. 

In  an  action  against  common  carriers,  to  recover  damages  for  an  injury  to  a  quantity  of 
oats,  caused  by  their  heating  and  becoming  mouldy  in  consequence  of  the  failure  of 
the  defendants  to  transport  them  from  Canada,  where  they  were  in  store,  to  Oswego, 


166  CARRIERS. 

within  the  time  required  by  their  contract,  it  appearing  that  notwithstanding  the 
delay  of  the  defendants,  the  oats  would  not  have  been  injured  had  they  been  proper- 
ly cared  for  by  the  custodians  thereof,  by  handling  over  or  stirring  them ;  it  was  held 
that  the  duty  of  taking  care  of  the  grain  rested  upon  the  plaintiffs,  or  their  agents 
the  custodians  thereof,  and  not  upon  the  defendants;  no  responsibility,  in  this  re- 
spect, attaching  to  the  latter  until  they  took  possession  of  the  property,  and  that 
they  were  not  answerable  for  the  damages  which  resulted  from  the  failure  to  bestow 
the  necessary  care. 

This  was  an  action  against  the  defendants  as  common  carriers,  in 
which  the  plaintiffs  claimed  damages  for  injury  to  a  quantity  of  oats, 
caused  by  their  heating  and  becoming  mouldy,  during  the  months  of 
June  and  July,  1851,  in  consequence  of  the  failure  of  the  defendants 
to  transport  them  from  Perth,  in  Canada,  to  Oswego,  within  the  time 
required  by  their  contract.  There  were  two  counts  in  the  complaint, 
in  one  of  which  it  was  alleged  that  the  defendants  engaged  to  deliv- 
er the  oats  at  Oswego  in  the  month  of  May,  at  five  cents  per  bushel 
freight ;  and  in  the  other  that  they  engaged  to  deliver  for  the  same 
amount  of  freight,  without  fixing  any  time  of  delivery.  In  addition 
to  damages  for  the  injury  to  the  oats,  the  plaintiffs  also  claimed 
damages  for  the  expense  of  taking  care  of  them  after  their  arrival, 
and  for  loss  of  profits  by  the  fall  in  price  of  oats  during  the  de- 
lay. 

The  defendants  by  their  answer  denied  the  facts  alleged  in  the 
complaint,  and  stated  that  the  injury  to  the  oats  occurred  before 
they  came  to  the  defendants'  possession,  and  before  the  time  arrived 
for  their  transportation. 

On  the  trial  at  the  Oswego  circuit,  in  February,  1858,  the  plaint- 
iffs proved  by  a  correspondence  between  their  agents,  Colver,  Rath- 
bun  &  Co.,  and  the  defendants,  commencing  March  18  and  ending 
April  3,  1851,  a  contract  to  carry  the  oats  and  other  grain,  amount- 
ing to  thirty  thousand  or  forty  thousand  bushels,,  from  different 
places  in  Canada  named  in  the  correspondence,  to  Oswego,  at  five 
cents  per  bushel,  but  no  time  was  fixed  for  their  delivery.  Orders 
for  the  delivery  of  the  grain  were  sent  to  them,  and  it  appeared  to 
have  been  delivered  satisfactorily,  excepting  a  lot  of  about  four 
thousand  four  hundred  bushels  of  oats  which  were  at  Perth,  in  the 
storehouse  of  McDonald  &  Hall.  No  order  for  the  delivery  of 
those  oats  was  sent  to  the  defendants  until  the  24th  of  May,  when 
Colver,  Rathbun  &  Co.  wrote  to  them,  complaining  of  the  delay  in 
delivering  the  property  of  other  persons,  and  inclosing  an  order  on 
McDonald  &  Hall  for  the  oats  in  their  possession,  and  saying, 
"please  advise  us  if  you  will  send  down  for  the  oats  without  delay." 
This  letter  was  answered  by  the  defendants  on  the  27th  of  May, 


HAMILTON   v.   McPHERSON.  167 

when  they  said,  "  The  cargo  of  oats  from  Perth  shall  be  sent  for  on 
the  return  of  onr  boats,  that  started  for  Mr.  Hooker's  oats  at  that 
place  last  evening,  probably  the  close  of  this  week." 

The  oats  failing  to  come  forward,  the  defendants  were  written  to 
again  on  the  24th  of  June,  as  follows :  "  The  owners  of  the  oats  got 
at  Perth,  of  McDonald  <fc  Hall,  are  very  desirous  of  having  them 
brought  forward  at  once.  You  will  be  so  kind  as  to  have  them 
started  (if  not  done  so)  at  once,  or  as  soon  as  practicable."  On  the 
next  day  the  defendants  answered,  "  We  were  not  aware  that  all  the 
oats  had  not  come  from  Perth,  and  now  dispatch  a  steamer  with 
three  barges  to  Pike  Falls,  with  instructions  to  take  all  the  freight 
they  can  find  at  Perth." 

The  defendants  were  again  written  to  on  the  28th  of  June,  as 
follows :  "  "We  have  received  from  McDonald  &  Hall,  of  Perth,  no- 
tice that  they  are  very  desirous  that  the  oats,  some  three  thousand 
or  four  thousand  bushels,  should  be  removed  at  once,  as  they  say 
great  danger  is  apprehended  that  the  oats  will  take  injury  by  leaving 
so  large  a  quantity  together  at  this  season.  Also,  the  owners  or 
purchasers,  Messrs.  Sweet  &  Hamilton,  complain  that  they  want  the 
oats  badly,  having  sold  them  on  contract  and  the  price  having  fallen. 
They  fear  trouble  and  loss  for  want  of  them  before. 

"  We  find  by  reference,  that  we  sent  you  an  order  on  the  24th  of 
May,  for  their  oats  ;  that  we  have  your  reply  that  they  should  come 
forward  at  once.  If  any  damage,  the  parties  will  look  to  you  for  it. 
We  have  done  our  duty  here,  fully." 

The  defendants  answered  this  letter  on  the  first  day  of  July,  as 
follows  :  "  We  beg  to  inform  you,  in  reply  to  your  letter  of  the  28th, 
that  we  never  received  an  order  from  you  on  Messrs.  McDonald  ifc 
Hall.  We,  however,  sent  them  boats  the  instant  we  learned  that 
you  had  not  got  all  the  oats  you  expected  from  Perth,  and  doubtless 
they  will  be  here  this  week." 

The  oats  were  taken  by  defendants'  boats,  from  McDonald  & 
Hall's  storehouse  at  Perth,  on  the  2d,  and  delivered  to  Colver,  Rath- 
bun  &  Co.,  for  the  plaintiffs  at  Oswego,  on  the  10th  or  12th  of  July. 
They  were  heated,  mouldy  and  considerably  damaged,  the  injury 
having  occurred  from  their  remaining  in  the  bins  at  Perth,  during 
the  hot  weather  in  June. 

There  was  no  negligence  or  unreasonable  delay  in  delivering  the 
oats,  after  the  27th  of  June,  when  the  vessels  started  from  Kingston 
for  that  purpose.  It  was  shown  that  oats  could  be  kept  in  bins 
through  the  summer  without  injury,  if  they  were  properly  cared 
for,  but  they  required  handling  over  or  stirring,  to  keep  them 
from  heatinsr. 


168  CARRIERS. 

The  judge  charged  the  jury,  that  if  they  should  find  that  the  oats 
became  heated  and  damaged  after  the  defendants  were  bound  to  en- 
ter upon  their  contract,  and  they  became  heated  and  damaged  by 
reason  of  the  delay,  then  they  were  liable  to  respond  in  damages, 
and  were  liable  to  the  extent  of  such  injury  and  damage.  To  this 
part  of  the  charge  the  defendants  excepted. 

The  defendants'  counsel  requested  the  judge  to  charge  that  the 
defendants  were  not  liable  to  respond  in  damages  for  the  injury  sus- 
tained by  the  oats  while  they  were  at  Perth,  and  before  they  came 
to  the  possession  of  the  defendants.  The  judge  refused  so  to  charge, 
but  instructed  the  jury  on  this  point,  "  that  the  defendants  were  lia- 
ble to  respond  for  any  damage  the  oats  sustained  after  the  defend- 
ants should  have  entered  upon  the  performance  of  the  contract." 
To  the  refusal  and  to  the  charge  on  this  point  the  defendants'  coun- 
sel excepted. 

The  jury  found  a  verdict  in  favor  of  the  plaintiffs  for  seven  hun- 
dred and  thirty  dollars,  for  which  amount,  with  costs,  a  judgment 
was  entered  against  the  defendants,  which  was  reversed  on  appeal 
by  the  defendants  to  the  general  term,  and  a  new  trial  ordered. 
From  this  judgment  the  plaintiffs  brought  the  present  appeal,  with 
a  stipulation  that  if  the  judgment  appealed  from  shall  be  affirmed, 
judgment  absolute  may  be  entered  against  them. 

Selden,  J. — A  good  cause  of  action  was  shown  on  the  part  of 
the  plaintiffs  against  the  defendants,  for  neglecting  to  proceed  with 
reasonable  diligence  in  forwarding  the  oats  after  the  notice  which 
they  received  on  the  27th  of  May,  and  the  only  question  which  the 
case  presents  relates  to  the  amount  of  damages  for  which  the  defend- 
ants are  responsible. 

The  rule  applicable  to  such  cases  has  been  briefly  and  accurately 
stated  by  Mr.  Powell,  as  follows :  "  Damages  for  breaches  of  con- 
tract are  only  those  which  are  incidental  to,  and  directly  caused  by, 
the  breach,  and  may  reasonably  be  presumed  to  have  entered  into 
the  contemplation  of  the  parties  ;  and  not  speculative  profits,  or  ac- 
cidental or  consequential  losses  "  (Powell  on  Ev.  ch.  21,  §  54,  p.  216 ; 
Hadley  v.  Baxendale,  9  Wels.  H.  &  G.  341 ;  Griffin  v.  Colver,  16 
N.  Y.  Eep.  494,  495  ;  Code  Nap.  §§  1150, 1151 ;  Mayne  on  Dam.  15). 
I  think  the  instructions  given  to  the  jury  in  this  case,  which  were 
excepted  to,  cannot  be  reconciled  to  this  rule.  The  damages  to  the 
oats,  from  heating,  were  not  "  incidental  to,  or  directly  caused  by," 
the  delay  in  moving  them.  The  delay,  if  proper  care  had  been  be- 
stowed upon  the  oats,  would  not  have  resulted  in  their  injury.  The 
direct  cause  of  injury,  therefore,  was  the  want  of  care.      The  neces- 


HAMILTON  v.   McPHERSON.  169 

sity  for  extra  care  arose  from  the  delay,  and  the  expenses  attending 
such  necessary  care,  if  it  had  been  bestowed,  would  have  been  the 
direct  result  of  the  defendants'  breach  of  contract.  For  such  ex- 
penses they  would  have  been  answerable,  but  were  not  answerable 
for  the  damages  which  resulted  from  the  failure  to  bestow  that  care. 
The  law,  for  wise  reasons,  imposes  upon  a  party  subjected  to  injury 
from  a  breach  of  contract,  the  active  duty  of  making  reasonable  ex- 
ertions to  render  the  injury  as  light  as  possible.  Public  interest  and 
sound  morality  accord  with  the  law  in  demanding  this  ;  and  if  the 
injured  party,  through  negligence  or  willfulness,  allows  the  damages 
to  be  unnecessarily  enhanced,  the  increased  loss  justly  falls  upon  him 
(Miller  v.  Mariners'  Church,  7  Greenleaf,  51  ;  Shannon  v.  Comstock, 
21  Wend.  461 ;  Heckscher  v.  McCrea,  24  Id.  309  ;  Clark  v.  Marsiglia, 
1  Denio,  317 ;  Spencer  v.  Halstead,  Id.  606 ;  Loker  v.  Damon,  17 
Pick.  284). 

If  the  injury  to  the  oats  had  been  the  necessary  consequence  of 
the  delay,  and  the  contract  had  been  entered  into  by  the  defendants 
in  view  of  that  consequence,  in  case  of  their  failure  in  performance 
(Hadley  v.  Baxendale,  9  Exch.  supra),  they  would  have  been  respon- 
sible for  such  injury,  because  it  would  have  been  the  direct  result  of 
their  breach  of  contract.  The  case  then  would  have  been  parallel  to 
that  of  the  failure  of  a  railroad  company  to  take  milk  or  vegetables 
to  market,  in  accordance  with  previous  contract,  and  other  like  cases 
suggested  by  Mr.  Justice  Mullen  in  his  dissenting  opinion  in  this 
case.  In  such  cases,  however,  the  injured  parties  could  recover 
nothing  for  damages,  which,  by  reasonable  diligence  on  their  part, 
could  have  been  prevented  (Miller  v.  Mariners'  Church,  supra). 

The  burden  of  proving  that  the  damages  which  have  been  sus- 
tained in  such  cases  could  have  been  prevented,  unquestionably  rests 
upon  the  party  guilty  of  the  breach  of  contract  (Costigan  v.  The  M. 
&  H.  K.  E.  Co.  2  Denio,  609).  As  I  understand  the  case,  such 
proof  was  made  by  the  defendants  here  ;  but  whether  the  fact  was 
conclusively  proved  or  not,  there  was  sufficient  evidence  to  call  for 
the  submission  of  that  question  to  the  jury,  which  was  taken  from 
their  consideration  by  the  positive  instruction  of  the  judge,  that  the 
defendants  "  were  liable  to  respond  for  any  damage  the  oats  sus- 
tained after  the  defendants  should  have  entered  upon  the  perform- 
ance of  the  contract." 

It  is  not  material  to  inquire  whether  the  duty  of  taking  care  of 
the  oats  rested  upon  the  plaintiffs,  who  were  the  owners,  or  upon 
McDonald  &  Hall,  who  were  the  custodians  of  them.  It  is  sufficient 
for  the  present  case  that  it  rested  upon  one  or  the  other,  and  not 


170  CARRIERS. 

upon  the  defendants.  No  responsibility  in  this  respect  attached  to 
the  defendants,  until  they  took  possession  of  the  property. 

The  judgment  of  the  special  term  was  properly  reversed,  and 
final  judgment  must  be  rendered  against  the  plaintiffs,  in  pursu- 
ance of  their  stipulation. 

Denio,  Ch.  J.,  and  Davies,  Weight,  Emott  and  Marven,  Justices, 
concurring. 

Ordered  accordingly. 


Carrier  ;  Non-delivery  ;  Loss  of  Profits. 


[1868.]  The  British  Columbia  and  Vancouver's  Island 
Spar,  Lumber  and  Saw  Mill  Company  v.  Net- 
tleship  (L.  E.  3C.  P.  499). 

The  plaintiffs  delivered  to  the  defendant's  servants  on  a  quay  at  Glasgow,  for  shipment 
on  board  the  defendant's  vessel  which  lay  alongside,  several  cases  containing  ma- 
chinery, which  was  intended  for  the  erection  of  a  saw  mill  at  Vancouver's  Island. 
The  master  gave  a  bill  of  lading  for  them,  describing  the  cases  as  containing  "  mer- 
chandise." The  defendant  knew  generally  of  what  the  shipment  consisted.  On  the 
arrival  of  the  vessel  at  her  destination,  one  of  the  cases,  which  contained  machinery 
without  which  the  mill  could  not  be  erected,  could  not  be  found  on  board  ;  and  the 
plaintiffs  were  obliged  to  send  to  England  to  replace  the  lost  articles : 

Held,  that  the  measure  of  damages  for  the  breach  of  contract  was,  the  cost  of  replac- 
ing the  lost  articles  in  Vancouver's  Island,  with  interest  at  5  per  cent,  upon  the 
amount  until  judgment,  by  way  of  compensation  for  the  delay. 

The  cause  was  tried  before  Bovill,  C.  J.,  at  the  sittings  in  Lon- 
don after  last  Hilary  Term.  It  appeared  that  a  large  quantity  of 
machinery  for  the  construction  of  a  sawing  mill,  packed  in  cases,  was 
sent  from  the  works  of  the  engineers  who  made  it,  to  the  quay  at 
Glasgow,  alongside  which  the  Kent  was  lying ;  that  several  other 
vessels  were  also  loading  at  the  same  spot ;  that  a  mate's  receipt  was 
given  and  a  bill  of  lading  afterwards  signed  by  the  captain  for  the 
whole  number  of  cases  ;  and  that,  on  the  arrival  of  the  Kent  at  Van- 
couver's Island,  although  the  hatches  had  never  been  opened  during 
the  voyage,  one  of  the  cases,  which  weighed  about  two  tons  and  a 
half,  and  which  contained  a  large  quantity  of  the  smaller  and  more 
important  parts  of  the  machinery,  and  without  which  the  mill  could 
not  be  erected,  was  not  to  be  found. 


THE  BRITISH  COLUMBIA  SAW  MILL  CO.    v.    NETTLESHIP.  171 

His  Lordship  told  the  jury  that,  if  the  case  was  delivered  along- 
side the  vessel  into  the  custody  of  the  defendant's  agents,  the  defend- 
ant was  as  much  responsible  for  it  as  if  it  had  actually  been  shipped  ; 
and  he  left  it  to  them  to  say  whether  or  not  it  was  so  delivered. 
The  jury  found  that  it  was.  A  verdict  was  thereupon  entered  for 
the  plaintiffs  for  3,000^.,  the  full  sum  claimed,  subject  to  the  opinion 
of  the  court  as  to  the  principle  upon  which  the  damages  were  to  be 
ascertained  by  an  arbitrator  ;  and  the  following  order  of  nisi  prim, 
embodying  the  grounds  upon  which  the  plaintiffs'  claim  was  founded 
was  drawn  up  by  consent,  for  the  guidance  of  the  court  : 

1.  The  defendant  was  part  owner  of  the  ship  Kent.  The  master 
of  that  ship,  who  was  also  a  part  owner  of  her,  knew  when  he  agreed 
to  carry  the  goods  referred  to  in  the  charter  party  and  bill  of  lading- 
sued  upon,  that  the  said  goods,  consisting  of  different  parts  of  ma- 
chinery, were  intended  for  a  mill  to  be  erected  and  used  in  British 
Columbia  for  the  purpose  of  the  business  of  the  plaintiffs  in  cutting 
and  sawing  timber. 

2.  The  said  master  at  the  same  time  knew  that  the  missing  box 
contained  part  of  the  said  machinery.  The  defendant  had  no  per- 
sonal knowledge  as  to  the  contents  of  the  box  or  the  nature  of  the 
cargo,  save  that  it  consisted  of  machinery. 

3.  The  actual  cost  to  the  plaintiffs  of  replacing  the  missing  ma- 
chinery, including  freight  to  British  Columbia,  was  353£.  lis.  9d. 

4.  The  time  occupied  in  replacing  it  was  between  eleven  and 
twelve  months,  during  which  time  the  whole  of  the  mill  of  which 
the  missing  portion  formed  part  was  stopped  and  useless.  The  de- 
fendant contended  that  the  missing  machinery  could  have  been  re- 
placed much  earlier. 

5.  The  plaintiffs  alleged  that  a  fair  rate  of  hire,  or  use  and  occu- 
pation value,  at  British  Columbia,  of  the  missing  portion,  taken  by 
itself,  from  the  time  when  it  ought  to  have  been  delivered  until  the 
time  it  was  replaced,  would  be  2,646Z.  2s.  3d.  The  defendant  con- 
tended that  there  was  no  known  rate  of  hire,  or  use  and  occupation 
value,  at  British  Columbia,  for  the  said  missing  portion. 

6.  The  plaintiffs  alleged  that  a  fair  rate  of  hire,  or  use  and  occu- 
pation value,  at  British  Columbia,  of  the  whole  machinery  of  which 
the  said  missing  portion  formed  part,  to  be  applied  to  the  purposes 
for  which  it  was  required  by  the  plaintiffs  for  the  said  period,  was 
2,646^.  2s.  3d.  The  defendant  contended  that  there  was  no  known 
rate  of  hire,  or  use  and  occupation  value,  at  British  Columbia,  for 
the  whole  machinery. 

7.  The  plaintiffs  alleged  that  their  actual  loss  greatly  exceeded 


172  CARRIERS. 

these  amounts  :  but  the  defendant  contended  that  the  plaintiffs* 
alleged  loss  (if  any)  beyond  the  said  sum  of  353Z.  17s.  9d.  pro- 
ceeded from  other  causes.  The  plaintiffs  claimed  the  actual  cost 
of  replacing  the  said  machinery,  and  also  a  rental  or  use  and  oc- 
cupation value  of  the  whole  of  the  machinery,  or  of  such  part 
as  the  court  might  think  them  entitled  to,  from  the  time  the 
missing  portion  ought  to  have  been  delivered  until  it  was  re- 
placed. 

8.  The  above  figures  were  stated  hypothetically ;  and  it  was 
agreed  that  it  should  be  left  to  the  arbitrator  to  ascertain  the 
amounts  in  accordance  with  the  opinion  of  the  court,  and  also  to 
ascertain  any  other  amounts  or  facts  which  according  to  the  opin- 
ion of  the  court  might  be  decided  to  be  material  in  determining  the 
amount  of  damages. 

Sir  G.  Jlonyman,  Q.  C,  in  Easter  Term  last,  moved  for  a  rule 
nisi  to  reduce  the  damages  by  the  amount  claimed  beyond  the  cost 
of  replacing  the  machinery  which  was  lost,  or  as  the  court  might 
think  fit ;  and  also  for  a  new  trial,  on  the  ground  of  misdirection. 
He  submitted  that  the  Lord  Chief  Justice  ought  to  have  told  the 
jury  that  the  responsibility  of  the  defendant  did  not  commence 
until  the  goods  were  actually  put  on  board ;  citing  Grant  v.  Nor- 
way (10  C.  B.  665). 

Byles,  J. — My  lord  left  it  to  the  jury  in  this  case  to  say 
whether  the  goods  in  question  were  delivered  into  the  charge  of 
the  servants  of  the  defendant.  I  see  no  misdirection  in  that.  Gut- 
torno  v.  Adams  (12  C.  B.  N".  S.  560)  is  rather  an  authority  against 
the  defendant.  The  necessity  and  convenience  of  commerce  require 
that  the  owner's  liability  should  commence  from  the  moment  the 
goods  get  into  the  hands  of  his  servants.  The  rule  will  go  therefore 
only  for  a  reduction  of  damages. 

Bovill,  C.  J.,  Keating,  J.,  and  Montague  Smito,  J.,  concurred 
(see  Meyer  v.  Dresser,  16  C.  B.  K  S.  646 ;  33  L.  J.  C.  P.  289). 

A  rule  nisi  having  been  granted  and  argued,  the  following  opin- 
ions were  delivered : 

Bovill,  C.  J. — In  this  case  it  is  agreed  that  the  verdict  shall 
stand  for  the  plaintiffs  for  3531.  17s.  9d.,  the  cost  of  replacing  the 
articles  lost,  with  the  cost  of  carrying  them  to  their  destination. 
The  difficulty  arises  in  respect  of  the  plaintiffs'  claim  for  damages 
for  the  delay  in  replacing  the  contents  of  the  lost  box,  nearly  twelve 
months  having  been  thus  consumed  by  reason  of  the  impossibility 
of  completing  the  machinery  in  Vancouver's  Island.  Are  the  plaint- 
iffs entitled  to  damages  in  respect  of  that  delay  ?  and  if  so,  upon 


THE  BRITISH  COLUMBIA  SAW  MILL  CO.   v.   NETTLESHIP.  173 

what  principle  are  those  damages  to  be  assessed  ?      It  is  to  be  ob- 
served that  the  defendant  is  a  carrier,  and  not  a  manufacturer  of 
goods  supplied  for  a  particular  purpose.     The  extent  of  the  carrier's 
liability  is  to  be  governed  by  the  contract  he  has  entered  into,  and 
the  obligations  which  the  law  imposes  upon  him.     He  is  not  to  be 
made  liable  for  damages  beyond  what  may  fairly  be  presumed  to 
have  been  contemplated  by  the  parties  at  the  time  of  entering  into 
the  contract.     It  must  be  something  which  could  have  been  foreseen 
and  reasonably  expected,  and  to  which  he  has  assented  expressly  or 
impliedly  by  entering  into  the  contract.     The  defendant  admits  that 
he  is  liable  for  the  value  of  the  articles  which  were  lost.     Beyond 
that,  I  think  he  is  responsible  for  the  delay,  as  a  consequence  of  his 
breach  of  duty.     In  considering  the  question  of  delay,  and  the  prin- 
ciple upon  which  the  damages  for  it  are  to  be  assessed,  many  serious 
considerations  arise.     No  stronger  instance  can  be  put  than  that  of 
a  failure  of  an  engagement  to  pay  acceptances  at  maturity.     The 
non-payment  may  cause  the  destruction  of  the  creditor's  trade ;  and 
the  debtor  may  know  that  inevitable  ruin  will  be  the  result.     And 
vet  what  in  that  case  is  the  measure  of  damages  which  the  creditor 
is  entitled  to  recover  %     Has  it  ever  been  held  to  be  the  actual 
amount  of  the  damage  sustained  ?     Certainly  not.     The  true  meas- 
ure is,  a  reasonable  compensation  for  the  non-performance  of  the 
contract.     In  practice  that  is  now  settled  on  the  principle  of  allow- 
ing interest,  varying  sometimes  in  amount.     In  the  present  case,  a 
claim  is  made  for  the  loss  incurred  by  the  stoppage  of  the  works 
during  the  time  that   the  whole   machinery  remained   useless   by 
reason  of  the  absence  of  the  missing  box.     But  was  that  stoppage  a 
consequence  that  was  known  or  could  be  contemplated  ?     The  de- 
fendant certainly  knew  that  the  box  contained  part  of  the  machin- 
ery.    But  it  was  not  shown  that  he  knew  it  contained  a  material 
part,  and  that  without  it  none  of  the  machinery  could  be  put  to- 
gether.    If  he  had  no  such  knowledge,  how  can  it  be  said  that  he 
intended  to  become  responsible  for  the  consequences  which  are  now 
sought  to  be  imposed  upon  him  ?     Such  damages  must  be  purely 
speculative.     All  the  defendant  could  know  was  that  a  mill  was 
intended  to  be  erected.     He  could  not  speculate  upon  the  sort  of 
business  intended  to  be  carried  on,  or  as  to  whether  the  carrying  it 
on  would  entail  profit  or  loss.     It  is  impossible  that  all  these  contin- 
gencies could  have  been  contemplated  by  the  parties  at  the  time  of 
entering  into  the  contract,  as  the  probable  consequence  of  a  breach 
of  it.     Suppose  the  whole  of  the  machinery  had  been  lost  by  a  peril 
of  the  sea,  through  the  negligence  of  the  captain,  or  suppose  it  had 


174  CARRIERS. 

been  stolen,  could  the  plaintiffs  have  claimed  the  value  of  the  arti- 
cles and  also  damages  for  the  loss  of  the  use  they  might  have  made 
of  them  %  Where  has  such  a  principle  ever  been  laid  down  ?  The 
measure  of  damages  may  be  very  different  in  cases  of  fraud.  But  I 
know  of  no  case  nor  any  principle  which  can  justify  such  a  claim  as 
this  in  an  action  for  a  breach  of  contract.  My  Brother  "Willes  has 
handed  me  a  case  of  collision  decided  by  Dr.  Lushington  in  the 
admiralty  court,  the  case  of  The  Columbus  (3  Wm.  Bob.  158). 
The  claim  there  was  for  the  loss  of  profits  and  master's  earnings 
during  the  time  the  damaged  vessel  was  under  repair.  In  delivering 
judgment,  the  learned  judge  says  :  "  I  do  not  recollect  a  case,  and 
no  case  has  been  suggested  to  me,  where  a  vessel  has  been  considered 
as  a  total  loss,  and  the  full  value  of  that  vessel  having  been  awarded 
by  the  registrar  and  merchants,  any  claim  has  been  set  up  for  com- 
pensation beyond  the  value  of  that  vessel."  And  in  another  part  of 
the  judgment  he  says :  "  Supposing,  for  instance,  that  this  vessel 
had  been  an  East  Indiaman,  bound  on  her  outward  voyage  to  the 
East  Indies  with  a  valuable  cargo  on  board,  for  the  transportation  of 
which  not  only  would  the  owners  be  entitled  to  a  large  amount  of 
freight,  but  the  master  might  be  entitled  to  considerable  contingent 
profits  from  the  allowances  made  to  him  upon  such  a  voyage.  Could 
this  court  take  upon  itself  to  decide  upon  the  amount  of  these  con- 
tingencies, and  to  decree  the  payment  of  the  same  in  addition  to  the 
payment  of  the  full  value  of  the  ship  ?  I  am  clearly  of  opinion  that 
it  could  not.  The  true  rule  of  law  in  such  a  case  would,  I  conceive, 
be  this,  viz.,  to  calculate  the  value  of  the  property  destroyed,  at  the 
time  of  the  loss,  and  to  pay  it  to  the  owners  as  a  full  indemnity  to 
them  for  all  that  may  have  happened,  without  entering  for  a  mo- 
ment into  any  other  consideration."  If  that  be  the  true  rule  in  the 
case  of  a  wrongful  act  committed  by  a  vessel,  how  much  more  forci- 
bly it  applies  where  the  question  depends  on  contract,  where  the 
consent  of  the  defendant  is  to  be  implied.  It  is  difficult  to  see  any 
proper  way  of  compensating  the  plaintiffs  for  the  delay  they  have 
suffered,  except  by  applying  the  rule  which  obtains  in  the  case  of 
non-payment  of  money,  viz.,  by  allowing  interest  on  the  value  of  the 
goods  which  had  to  be  replaced.  I  think  this  will  meet  the  justice 
of  the  case,  and  be  consistent  with  law. 

Willes,  J. — I  am  of  the  same  opinion.  Cases  of  this  kind  have 
always  been  found  to  be  very  difficult  to  deal  with,  beginning  with 
a  case  said  to  have  been  decided  about  two  centuries  and  a  half  ago, 
where  a  man  going  to  be  married  to  an  heiress,  his  horse  having  cast 
a  shoe  on  the  journey,  employed  a  blacksmith  to  replace  it,  who  did 


THE  BRITISH  COLUMBIA  SAW  MILL  CO.   v.   NETTLESHIP.  175 

the  work  so  unskillfully  that  the  horse  was  lamed,  and,  the  rider  not 
arriving  in  time,  the  lady  married  another ;  and  the  blacksmith  was 
held  liable  for  the  loss  of  the  marriage.  The  question  is  a  very 
serious  one  ;  and  we  should  inevitably  fall  into  a  similar  absurdity 
unless  we  applied  the  rules  of  common  sense  to  restrict  the  extent 
of  liability  for  the  breach  of  a  contract  of  this  sort.  The  rule  of 
the  Civil  Law,  as  stated  by  Pothier  (Traite  des  Obligations,  part  i, 
ch.  2,  sec.  164),  was,  in  the  absence  of  fraud,  to  award  for  the  breach 
of  a  contract  relating  to  a  chattel  double  the  value  of  the  chattel 
itself.  But  he  goes  on  to  say  that  this  is  "  an  arbitrary  or  positive 
law,  which,  as  such,  has  not  any  authority  in  the  provinces  of  France. 
But  the  principle  on  which  it  is  founded,  of  not  allowing  a  debtor 
who  is  free  from  the  imputation  of  any  fraud,  to  be  charged  with 
damages  and  interests  resulting  from  the  non-performance  of  his 
obligation,  beyond  the  sum  to  which  at  the  utmost  they  might  be 
expected  to  amount,  being  founded  upon  reason  and  natural  equity, 
we  ought  to  follow  this  principle,  and  moderate  the  damages  and 
interests,  when  they  are  excessive,  agreeably  thereto,  leaving  this 
moderation  to  the  discretion  of  the  judge."  What,  then,  is  the  rule 
which  ought  to  govern  a  case  of  this  sort  ?  I  am  disposed  to  take 
the  narrow  view,  that  one  of  two  contracting  parties  ought  not  to 
be  allowed  to  obtain  an  advantage  which  he  has  not  paid  for.  The 
conclusion  at  which  we  are  invited  to  arrive  would  fix  upon  the 
ship-owner,  beyond  the  value  of  the  thing  lost,  and  the  freight,  the 
further  liability  to  account  to  the  intended  mill-owners,  in  the  event 
of  a  portion  of  the  machinery  not  arriving  at  all  or  arriving  too  late 
through  accident  or  his  default,  for  the  full  profits  they  might  have 
made  by  the  use  of  the  mill  if  the  trade  were  successful  and  without 
a  rival !  If  that  had  been  presented  to  the  mind  of  the  ship-owner 
at  the  time  of  making  the  contract,  as  the  basis  upon  which  he  was 
contracting,  he  would  at  once  have  rejected  it.  And,  though  he 
knew  from  the  shippers  the  use  they  intended  to  make  of  the  arti- 
cles, it  could  not  be  contended  that  the  mere  fact  of  knowledge, 
without  more,  would  be  a  reason  for  imposing  upon  him  a  greater 
degree  of  liability  than  would  otherwise  have  been  cast  upon  him. 
To  my  mind,  that  leads  to  the  inevitable  conclusion  that  the  mere 
fact  of  knowledge  cannot  increase  the  liability.  The  knowledge 
must  be  brought  home  to  the  party  sought  to  be  charged,  under 
such  circumstances  that  he  must  know  that  the  person  he  contracts 
with  reasonably  believes  that  he  accepts  the  contract  with  the  special 
condition  attached  to  it.  The  case  of  Ogle  v.  Lord  Yane  (Law  Rep. 
3  Q.  B.  272),  is  not  much  to  the  purpose :  the  arrangement  as  to 


176  CARRIERS. 

damages  took  place  after  breach.  Several  circumstances  occur  to 
one's  mind  in  this  case  to  show  that  there  was  no  such  knowledge  on 
the  defendant's  part  which  would  warrant  the  conclusion  contended 
for  by  the  plaintiffs.  In  the  first  place,  the  carrier  did  not  know 
that  the  whole  of  the  machinery  would  be  useless  if  any  portion  of 
it  failed  to  arrive,  or  what  that  particular  part  was.  And  that  sug- 
gests another  consideration.  He  did  not  know  that  the  part  which 
was  lost  could  not  be  replaced  without  sending  to  England.  And, 
applying  what  I  have  before  suggested,  if  he  did  know  this,  he  did 
not  know  it  under  such  circumstances  as  could  reasonably  lead  to 
the  conclusion  that  it  was  contemplated  at  the  time  of  the  contract 
that  he  should  be  liable  for  all  those  consequences  in  the  event  of  a 
breach.  Knowledge  on  the  part  of  the  carrier  is  only  important  if 
it  forms  part  of  the  contract.  It  may  be  that  the  knowledge  is 
acquired  casually  from  a  stranger,  the  person  to  whom  the  goods 
belong  not  knowing  or  caring  whether  he  had  such  knowledge  or 
not.  Knowledge,  in  effect,  can  only  be  evidence  of  fraud,  or  of  an 
understanding  by  both  parties  that  the  contract  is  based  upon  the 
circumstances  which  are  communicated.  That  is  indicated  by  Po- 
thier  in  the  passage  referred  to,  and  distinctly  pointed  out  in  the 
case  of  the  canon.  And  that,  no  doubt,  is  what  was  intended  by  the 
Lord  Chief  Justice  in  Cory  v.  Thames  Ironworks  Company  (Law 
Rep.  3  Q.  B.  181).  In  conclusion,  referring  to  the  rule  for  the 
assessment  of  damages  laid  down  in  the  case  of  collisions,  see  the 
vast  field  of  inquiry  which  would  be  opened  out,  involving  specula- 
tions of  the  wildest  kind,  if  we  are  to  take  into  consideration  the 
plaintiff's  intention  to  erect  a  mill,  and  to  set  up  for  the  first  time  a 
trade,  the  probable  profits  of  which  are  wholly  incapable  of  calcula- 
tion or  approximation.  It  would  be  making  a  guess,  in  order  to  im- 
pose upon  the  carrier  for  the  mere  breach  of  a  contract  an  extent  of 
liability  wThich  we  should  decline  to  fix  even  upon  a  wrong-doer. 
Take  the  case  of  a  barrister  on  his  way  to  practice  at  the  Calcutta 
bar,  where  he  may  have  a  large  number  of  briefs  awaiting  him : 
through  the  default  of  the  Peninsular  &  Oriental  Company  he  is 
detained  in  Egypt  or  in  the  Suez  boat,  and  consequently  sustains 
great  loss  ;  is  the  company  to  be  responsible  for  that,  because  they 
happened  to  know  the  purpose  for  which  the  traveler  was  going  '\ 
I  entirely  agree  with  my  lord  that  the  plaintiffs  cannot  recover 
damages  beyond  the  sum  necessarily  expended  in  replacing  the  lost 
box  of  machinery,  and  the  freight,  and  interest  upon  the  amount 
for  the  time  the  plaintiffs  were  delayed. 

Byles,  J. — The  subject  having  been  exhausted  by  my  lord  and 


WARD   v.   THE  NEW  YORK  CENTRAL  RAILROAD  CO.  177 

my  brother  "Willes,  I  have  nothing  to  add.     The  verdict  will  stand 
for  353Z.  17s.  9d.,  and  interest  at   5  per  cent,  until  judgment,  the 
costs  of  this  application  to  be  allowed  to  the  plaintiffs  as  part  of 
their  costs  in  the  cause. 
Rule  discharged. 

See  O'Hanlan  v.  The  Great  Western  Railway  Co.  6  B.  &  S.  484. 


Carrier's  Neglect  to  Transport  within  Reasonable  Time  ;  Fall 
in  Market  of  Delayed  Goods. 


[1871.]    Ward  et  al.  v.  The  N.  Y.  Cent.  E.  R.  Co.  (47  N.  Y.  29). 

A  common  carrier  is  bound  to  deliver  goods  at  the  place  of  destination  within  a  reason- 
able time,  and  if  he  negligently  fail  to  do  so,  is  liable  for  any  loss  in  their  market 
value  at  that  place  sustained  in  consequence  of  the  delay. 

This  was  an  appeal  to  the  Court  of  Appeals  of  New  York  from 
a  judgment  for  the  defendant,  entered  on  the  report  of  a  referee. 

The  plaintiffs,  on  the  9th  of  December,  1867,  at  Le  Boy,  in 
Genesee  county,  shipped  to  New  York  city,  by  the  defendant, 
seventy-eight  dressed  pigs,  weighing  9,182  pounds,  which  should 
have  arrived,  according  to  the  usual  course  of  transportation,  in 
forty-eight  hours,  but,  without  necessity  for  the  detention,  did  not 
arrive  till  December  26th  ;  in  consequence  of  which,  owing  to  a  fall 
in  the  market  mean  time,  there  was  an  average  loss  of  a  cent  and  a 
half  a  pound. 

The  action  was  brought  to  recover  damages  for  the  delay. 

The  referee  found  for  the  defendant,  holding  that  the  plaintiffs 
were  not  entitled  to  recover  for  the  decline  in  market  value. 

Peckham,  J. — It  is  insisted  by  the  defendant,  that  it  is  not  liable 
for  any  damages  happening  to  this  property  after  it  reached  Albany 
and  was  placed  in  the  custody  of  the  Hudson  River  road  for  further 
transportation,  because  the  contract  for  transportation  showed  that 
its  liability  as  common  carrier  ceased  at  Albany.  The  answer  to 
this  is,  that  the  referee  finds  expressly,  that  "  the  defendant  received 
this  property  of  plaintiffs  for  transportation  to  the  city  of  New 
York,"  and  the  whole  evidence  is  not  contained  in  the  case.  Only  a 
12 


178  CARRIERS. 

small  part  is  retained,  and  then  the  case  adds  that  "  evidence  was  in- 
troduced by  the  parties,  from  which  the  referee  found  the  facts 
which  appear  in  his  report."  Under  such  circumstances  it  cannot 
be  said  that  the  referee  has  found  this  fact  without  any  evidence  to 
support  it.  We  are  bound  to  presume  that  there  was  sufficient 
evidence. 

The  facts  as  found  present  the  distinct  question,  what  is  the 
measure  of  damages  against  a  carrier  who  has  negligently  omitted 
to  deliver  the  goods  at  the  time  he  ought  to  have  delivered  them  ? 

"Where  a  contract  has  been  violated,  the  law  intends  to  give  to 
the  party  injured  the  damages  caused  thereby  ;  that  is,  the  natural 
and  proximate  damages  caused  by  the  breach.  It  is  supposed  that 
both  parties  contemplated  the  consequences  of  such  breach  at  the 
time  they  made  the  contract,  and  acted  accordingly  both  in  making 
and  in  performing  or  violating  its  provisions  (Griffin  v.  Colver,  16 
N.  T.  489,  and  cases  there  cited). 

Where  a  carrier  from  mere  negligence,  from  plain  violation  of 
duty  omits  to  transport  merchandise  beyond  a  reasonable  time,  and 
its  market  value  falls  in  the  mean  time,  the  true  rule  of  damages  in 
my  judgment,  both  upon  principle  and  authority,  is  the  difference  in 
its  value  at  the  time  and  place  it  ought  to  have  been  delivered  and 
the  time  of  its  actual  delivery.  The  rule  is  simple,  and  though  it 
may  sometimes  operate  harshly,  easily  applied. 

Sagacious  business  men  rely  upon  their  ability  to  judge  of  the 
market  in  undertaking  large  commercial  projects.  According  to 
their  views  of  the  market,  they  send  their  merchandise  by  a  quick  or 
by  a  slow  carrier,  and  make  compensation  accordingly. 

A  contrary  rule  would  deprive  them  of  all  benefit  of  a  rapid 
transit.  It  would  be  left  to  the  caprice  of  the  carrier  when  to  trans- 
port, and  the  owner  could  have  no  relief.  It  would  be  no  answer  to 
say  that  the  owner  might  make  a  special  contract  for  the  transport 
at  a  given  time.  The  contract  would  have  to  contain  a  special  pro- 
vision to  pay  these  damages  or  the  carrier's  liability  would  not  be  al- 
tered. If  a  special  contract  be  needed,  I  think  it  falls  upon  the  de- 
fendant to  make  it,  or  the  company  will  be  liable  for  not  delivering 
in  a  reasonable  time. 

If  the  carrier  would  be  liable  for  these  damages  upon  a  special 
contract  to  transport  by  a  given  time,  he  clearly  would  be  for  a  vio- 
lation of  his  duty.  In  the  absence  of  any  special  agreement,  the  law 
implies  that  the  carrier  agrees  to  transport  in  a  reasonable  time.  That 
is  his  duty.  In  failing  to  do  so,  he  not  only  violates  his  duty,  but 
also  the  contract  upon  which  it  is  based.     The  only  legal  cliff erence 


WARD   v.   THE  NEW  YORK  CENTRAL  RAILROAD  CO.  179 

is  that  by  the  special  contract,  the  carrier  agrees  and  is  required  ab- 
solutely to  transport  by  a  given  time.  In  such  case,  no  excuses  will 
save  him  from  damages  for  a  breach  such  as  will  entirely  shield  him 
in  the  absence  of  a  special  agreement  (2  Ked.  on  Rail.  191-193 ; 
Harmony  v.  Bingham,  12  ~N.  Y.  99). 

It  is  well  settled  law  that  a  carrier,  on  an  entire  failure  to  deliver, 
is  liable  for  the  market  price  of  the  goods  at  the  time  and  place  for 
delivery  (O'Hanlon  v.  North.  R.  R.  Co.  6  Best  &  Smith,  484  ;  Bracket 
v.  MoNair,  14  Johns.  170).  So  held  at  the  present  term  of  this  court 
(Sands  v.  Lilienthal,  46  IS".  Y.  541).  So  as  to  a  sale  of  goods.  For  all 
damages  to  the  property  while  in  the  custody  of  the  carrier,  the 
measure  thereof  is  to  be  settled  by  the  market  at  the  place  for  de- 
livery. This  is  clearly  so  as  to  all  inland  carriage.  See  the  last  case 
(Bracket  v.  MoNair,  14  Johns.  170  ;  45  Barb.  502). 

If  liable  for  the  market  price  at  the  time  and  place  for  delivery, 
where  not  delivered  at  all,  it  would  seem  equally  rational  that  if  by 
reason  of  the  inexcusably  negligent  delay  of  the  carrier,  the  value  of 
the  goods  has  depreciated  in  market,  he  should  be  liable  to  the  owner 
to  the  extent  of  that  depreciation.  The  purpose  of  the  law  is  to 
make  the  owner  whole  in  each  case. 

There  is  an  elaborate  opinion  in  favor  of  the  defendant  in  Wi- 
bert  v.  The  K  Y.  &  E.  R.  R.  Co.  (19  Barb.  36),  but  the  point  was 
not  necessarily  decided.  The  referee  obviously  erred  in  finding  the 
road  guilty  of  negligence  in  not  forwarding  the  goods.  The  same 
opinion  was  reiterated  by  the  same  court  in  29  Id.  633.  With  this 
exception,  I  am  not  aware  of  any  decision  in  that  direction,  here  or 
elsewhere.  The  chief  objections  urged  against  this  rule  are  that  the 
damages  are  not  proximate,  but  remote,  if  any  damages  at  all ;  that 
in  fact  the  delay  is  not  the  cause  of  the  damage  ;  it  did  not  cause  the 
fall ;  that  the  goods  being  delivered  in  good  order,  the  loss  caused  by 
the  fall  in  the  market  cannot  be  charged  to  the  carrier  as  damages ; 
that  markets  are  fluctuating  and  uncertain. 

Had  the  goods  been  injured  by  reason  of  improper  exposure  by 
the  carrier,  and  thus  had  become  depreciated  in  their  market  value, 
it  is  clear  that  the  carrier  would  be  liable  for  the  loss.  It  was  his 
negligence  that  caused  it.  Here  his  negligent  delay  caused  the  loss. 
It  did  not  cause  the  decline  in  the  general  market,  but  it  deprived 
the  owner  of  his  right  to  the  higher  market  price.  The  defendant's 
negligent  violation  of  its  duty  thus  deprived  the  plaintiff  of  his  right, 
and  placed  this  loss  upon  him.  In  substance,  this  loss  is  the  same  to 
the  plaintiff  as  if  the  injury  had  been  done  to  the  property  itself  and 
thus  diminished  its  market  value.     The  injury  also  is  natural  and  di- 


180  CARRIERS. 

rect.  There  is  no  second  step,  no  action  of  the  owner  with  a  third 
person  by  contract  or  otherwise.  It  is  true  there  are  fluctuations  in 
the  market.  They  prevail  to  some  extent  as  to  all  commodities 
which  are  the  subject  of  transportation. 

That  is  not  a  sufficient  reason  for  abolishing  their  use  in  ascer- 
taining the  rights  and  liibilities  of  parties.  Confessedly  they  regu- 
late the  rights  of  parties  where  there  is  an  entire  failure  to  deliver 
either  by  a  carrier  or  by  a  vendor.  Legally  they  are  the  true  meas- 
ure of  the  value  of  the  goods.  Arriving  so  late,  later  by  the  car- 
rier's negligence,  these  goods  were  not  worth  as  much  as  at  the  time 
they  should  have  arrived ;  not  so  much  when  measured  by  the  rule 
that  governs  the  commercial  community.  Their  actual  value  was 
less  when  measured  by  the  only  standard  that  regulates  values. 

Why  should  not  the  defendant  pay  this  loss  its  negligence  has 
caused  ?  The  rule,  as  here  claimed,  is  decided  to  be  the  true  one,  in 
Kent  v.  Hud.  R.  K.  Co.  (22  Barb.  278) ;  in  Medbury  v.  N.  Y.  &  E. 
Road  (26  Barb.  564).  It  is  fully  recognized  in  Griffin  v.  Colver  (16 
1ST.  Y.  supra).  It  is  so  decided  in  England,  in  Collard  v.  S.  E.  Rail- 
way Co.  (7  Hurl.  &  N.  79) ;  in  Wilson  v.  The  Lancashire  &  York 
Kail.  Co.  (99  Eng.  C.  L.  632) ;  Same  v.  N.  Castle  &  Ber.  R.  Co.  (18  E. 
L.  &  E.  557).  In  one  of  these  cases  (Wilson  v.  The  New  Castle  & 
Ber.  R.  Co.)  the  contract  required  the  merchandise  to  be  transported 
by  a  certain  time,  but  was  silent  as  to  paying  any  damages.  It  is 
also  so  held  in  many  of  our  sister  States  (Cutting  v.  Grand  Trunk  R. 
R.  Co.  13  Allen,  381 ;  Sisson  v.  The  CI.  <fc  Tol.  R.  R.  Co.  14  Mich. 
489). 

But  if  this  be  not  the  true  rule  as  to  the  measure  of  damages, 
what  is  ? 

Wibert  v.  The  Erie  Road,  gives  no  aid  upon  this  point.  That 
holds  substantially  that  the  road  is  not  responsible  for  such  a  loss. 
It  is  damnum  absque  injuria.  It,  in  effect,  holds  that  the  road's 
neglect,  whereby  the  goods  are  delayed  and  subjected  to  a  fallen 
market,  and  the  owner  to  that  loss,  is  no  legal  injury.  We  all  think 
otherwise,  and  that  this  is  the  only  rule  that  does  justice  between 
the  parties. 

It  is  urged,  however,  that  there  was  no  evidence  that  this  prop- 
erty was  sent  to  New  York  to  be  sold  in  market ;  none  that  it  was 
actually  sold  at  a  loss. 

From  the  findings  of  the  referee,  I  think  it  clear  that  the 
plaintiff  had  sustained  these  damages,  "  resulting  solely  from  a  fall 
in  the  market  price ;"  but  he  held  that  such  damages  were  not  re- 
coverable. 


WARD   v.   THE  NEW  YORK  CENTRAL  RAILROAD  CO.  181 

If  the  plaintiff  sold  the  goods  in  a  brief  time  after  their  arrival, 
without  sustaining  any  loss,  that  would  be  matter  of  defense  ;  thus 
showing  that  the  fall  was  a  mere  momentary  fluctuation  in  the  mar- 
ket, and  that  the  delay  really  did  not  injure  the  plaintiff. 

The  rule  is  undoubtedly  somewhat  stringent ;  hence  the  proof  of 
negligence  in  this  respect  should  be  quite  clear. 

There  are  many  circumstances  that  would  excuse  a  carrier  from 
transporting  in  the  time  usually  required  for  an  ordinary  passage ; 
an  unusual  crowd  of  freight,  storms  or  freshets,  etc.,  etc.  (2  Red.  on 
Rail.  261,  §  173,  and  cases  in  note). 

Judgment  should  be  reversed  and  new  trial  ordered,  costs  to 
abide  the  event. 

All  concur. 

Judgment  reversed. 

Note.  In  England,  where  loss  in  the  market  value  of  goods  is  sustained  as  the 
direct,  immediate  and  necessary  consequence  of  the  failure  of  one  party  to  a  con- 
tract to  perform  his  agreement  by  the  time  stipulated  or  clearly  implied  in  the 
contract,  this  is  an  item  of  damage  which  may  be  recovered  for.  Accordingly, 
where  hops  intended  for  the  London  market  were  delivered  to  carriers  to  be 
carried  to  London,  and  through  the  earner's  fault,  were  injured  in  a  manner  to 
diminish  their  market,  though  not  their  actual  value,  and  were  also  delayed 
beyond  the  market  day,  and  their  salable  value  thereby  further  depreciated, 
damages  were  allowed  for  both  items  of  loss.  Collard  v.  South-Eastern  Railway 
Co.  7  H.  &  N.  79. 

But  where  the  circumstances,  in  the  judgment  of  the  court,  precluded  the  as- 
sumption that  the  parties  had  taken  the  chance  of  the  market  into  consideration 
at  the  time  when  the  bargain  was  made,  damages  for  the  loss  from  a  fall  in  the 
market  were  disallowed.     Smeed  v.  Foord,  1  E.  &  E.  602. 

In  the  case  of  a  carrier  by  sea  (The  Panama,  L.  R.  1  D.  B.  452),  the  above 
case  of  Ward  v.  The  New  York  Central  Railroad  Co.  was  cited  and  approved  by 
Sir  Robert  Phillimore  in  pronouncing  the  opinion  of  the  admiralty  division  of 
the  High  Court  of  Justice,  and  the  consignee  of  goods  not  delivered  within  a  rea- 
sonable time  was  held  entitled  to  recover  as  damages  from  the  shipowner,  the  differ- 
ence between  the  market  value  of  the  goods  when  they  ought  to  have  been 
delivered,  and  that  when  they  actually  were  delivered.  But  in  the  Court  of 
Appeal  this  decision  was  reversed,  on  the  ground  that  damages  ought  not  to  be 
recovered  merely  because  an  accidental  fall  in  the  market  value  of  the  goods 
happens  to  occur  at  the  place  of  destination  between  the  time  when  the  goods 
should  arrive,  and  that  when  they  do  arrive.  It  was  held  by  the  Lords  Justices 
that  to  allow  such  damages,  it  must  be  reasonably  certain  that  the  goods  would 
not  in  any  case  have  been  sold  until  they  should  arrive,  or  else  that  they  would  be 
sold  immediately  after  their  arrival,  and  that  this  must  have  been  known  to  the 
carrier  when  the  bills  of  lading  were  signed.  A  marked  distinction  was  drawn 
between  the  case  of  the  carriage  of  goods  by  sea  and  that  by  land.  Goods  are 
every  day  sold  while  they  are  at  sea  "  to  arrive,"  but  in  the  case  of  goods  trans- 


182  CARRIERS. 

ported  by  land,  the  court  seems  to  have  assumed  that  they  are  seldom  purchased 
until  they  reach  the  market.  There  was  no  proof  that  the  plaintiff  would  have 
sold  the  goods  when  they  arrived,  had  they  been  received  in  due  season ;  and 
the  court  thought  that  giving  damages  for  the  loss  of  the  market  would  have 
been  to  give  speculative  damages.     The  Panama,  36  L.  T.  R.  N.  S.  388. 

In  reference  to  this  case,  it  may  perhaps  be  observed  that  there  seems  to  be 
no  essential  difference  in  principle  between  liability  for  unreasonable  delay  in  the 
carriage  by  sea,  and  that  by  land,  though  in  the  present  state  of  the  science  of 
locomotion,  the  conditions  of  the  two  modes  of  transportation  are  materially 
different,  from  the  greater  certainty  and  precision  as  to  the  rate  of  speed  and 
time  of  arrival  which  are  attainable  by  land.  It  would  seem  to  follow,  that  if 
after  making  due  allowance  for  these  differing  conditions,  there  is  a  loss  in 
market  value,  clearly  attributable  to  the  negligent  delay  of  the  carrier  by  sea, 
corresponding  to  that  which  the  carrier  by  land  would  have  to  make  good,  the 
carrier  by  sea  should  be  no  less  held  responsible,  and  his  responsibility  should  be 
measured  by  a  no  less  stringent  rule.  Besides,  although  sales  of  goods  "to 
arrive  "  are  very  rarely  if  ever  made  in  the  United  Kingdom,  such  contracts 
are  legal  and  practicable  with  reference  to  transportation  on  land,  and  in  sub- 
stance, although  not  expressed  in  nautical  phrase,  we  believe  are  not  uncommon 
in  the  United  States,  and  are  perhaps  becoming  less  so. 

In  the  case  of  inland  navigation  in  the  United  States,  at  least  on  the  rivers, 
there  is  no  essential  difference  between  the  conditions  of  carriage  and  those  by 
rail,  as  regards  the  principles  regulating  the  measure  of  damages,  and  we  think 
the  same  rules  as  to  the  loss  of  the  market  should  be  applied  in  both  cases. 


Carrier  by  sea;    Carrier's  Duty;    Depreciation  in  Goods  from 

his  Neglect. 


[1872.]      NOTARA    AND    ANOTHER  V.    HENDERSON     AND    OTHERS 

(L.  R.  7  Q.  B.  225). 

There  is  a  duty  on  the  master  of  a  ship,  as  representing  the  shipowner,  to  take  reason- 
able care  of  the  goods  intrusted  to  hirn,  not  merely  in  doing  what  is  necessary  to 
preserve  them  on  board  the  ship  during  the  ordinary  incidents  of  the  voyage,  but 
also  in  taking  active  measures,  where  reasonably  practicable  under  all  the  circum- 
stances, to  check  and  arrest  the  loss  or  deterioration  resulting  from  accidents,  for 
the  necessary  and  immediate  consequences  of  which  the  shipowner  is  not  liable  by 
reason  of  exceptions  in  the  bill  of  lading.  And  for  neglect  of  this  duty  by  the 
master  the  shipowner  is  responsible  to  the  shipper. 

The  plaintiffs  shipped  beans  on  board  the  defendants'  ship,  under  a  bill  of  lading,  from 
Alexandria  to  Glasgow,  with  leave  to  call  at  intermediate  ports,  deliverable  to 
plaintiffs'  order  on  payment  of  freight  by  consignees.  The  ship  called  at  Liver- 
pool, and  in  going  out  met  with  a  collision  (a  peril  excepted  in  the  bill  of  lading), 
and  was  obliged  to  put  back  for  repairs,  which  detained  her  a  few  days.     The  beans 


NOTARA   v.    HENDERSON.  183 

■were  wetted  by  sea  water  in  consequence  of  the  collision  ;  and  the  plaintiffs,  being 
at  Liverpool,  offered  to  receive  them  there,  paying  freight  pro  rata;  but  the  defend- 
ants' agent  refused  to  deliver  them  without  being  paid  full  freight ;  and  the  beans 
were  carried  on  to  Glasgow  ;  and  on  their  arrival  there  they  were  much  deteriorated 
in  value,  beyond  what  they  would  have  been  by  the  mere  wetting  from  the  colli- 
sion, if  they  had  been  dried  instead  of  being  carried  on  as  they  were.  The  beans 
might  have  been  removed  at  Liverpool  from  the  ship  to  warehouses  and  spread 
out  and  dried,  and  there  was  warehouse  accommodation  within  half  a  mile 
of  the  dock  in  which  the  ship  was ;  and  by  this  means  the  decomposition  would 
have  been  materially  arrested  or  mitigated.  The  cost  of  unshipping,  drying,  and 
reshipping,  would  have  been  particular  average,  payable  by  the  shippers.  The 
plaintiffs  brought  an  action  against  the  defendants,  claiming  the  amount  of  the  extra 
depreciation.  On  a  case  disclosing  the  above  facts,  the  court  having  power  to  draw 
inferences : 

Held  (affirming  the  judgment  of  the  Court  of  Queen's  Bench),  that  the  facts  showed  that 
the  beans  might  have  been  taken  out  and  dried  (which  was  clearly  a  proper  thing 
to  do  on  behalf  of  the  owners),  and  then  reshipped,  without  unreasonably  delaying 
the  whole  adventure  ;  that  it  was,  therefore,  the  master's  duty  to  have  done  so,  and 
consequently  the  defendants  were  liable. 

Semblc,  that  the  measure  of  damages  was  the  amount  of  extra  depreciation  in  value  in 
consequence  of  the  neglect  to  dry  the  beans,  after  allowing  the  estimated  expense  of 
unshipping,  drying,  and  reshipping. 

Error  on.  the  judgment  of  the  Court  of  Queen's  bench  in  favor 
of  the  plaintiffs  on  a  special  case. 

Feb.  16.  The  judgment  of  the  court  (Kelly,  C.  B.,  Martin, 
Channell,  and  Cleasby,  BB.,  "Willes,  Byles,  and  Keateng,  JJ.) 
was  delivered  by 

Willes,  J. — This  is  an  action  by  the  shippers  of  beans  on  board 
a  steamship  called  the  Trojan,  for  a  voyage  from  Alexandria  to 
Glasgow,  against  the  shipowners,  for  an  alleged  neglect  of  the 
master  to  take  reasonable  care  of  the  beans  by  drying  them  at 
Liverpool,  into  which  port  the  vessel  was  driven  for  repairs,  by  an 
accident  of  the  sea,  from  the  direct  and  proximate  effect  of  which 
the  beans  were  wetted ;  and  from  the  remote  effects  of  which,  for 
want  of  drying,  they  were  further  seriously  damaged. 

The  bill  of  lading  was  subject,  amongst  other  exceptions,  to  the 
following,  viz.,  "  loss  or  damage  arising  from  collision  or  other  acci- 
dents of  navigation  occasioned  by  default  of  the  master  or  crew,  or 
any  other  accidents  of  the  seas,  rivers,  and  steam  navigation,  of 
whatever  nature  or  kind,  excepted  ;  "  and  it  gives  "  liberty  during 
the  voyage  to  call  at  any  port  or  ports  to  receive  fuel,  to  load  or 
discharge  cargo,  or  for  any  other  purpose  whatever." 

The  vessel  in  the  course  of  her  voyage  stopped  at  Liverpool, 
and  on  the  24th  October,  1868,  on  her  way  out,  came,  without  any 
fault,  into  collision  with  another  vessel.     The  result  of  the  collision 


184  CARRIERS. 

was  that  she  was  driven  ashore  in  an  exposed  place,  where  the  beans 
became  soaked  with  salt  water,  and  the  vessel  herself  received  an 
injury  which  made  it  necessary  that  she  should  put  back  to  Liver- 
pool for  repairs.  She  was  there  put  into  a  graving  dock  for  that 
purpose  on  the  27th,  and  temporarily  repaired,  in  order  to  proceed 
to  Glasgow.  For  the  purpose  of  lightening  the  ship,  and  to 
facilitate  the  repairs,  about  one-fourth  of  the  beans  were  trans- 
shipped into  lighters,  and  for  a  like  purpose  other  part  was  removed 
and  spread  out  in  the  after  part  of  the  ship.  When  the  ship  was 
repaired,  the  beans  were,  without  being  dried  or  otherwise  looked 
after,  replaced  in  the  wet  state.  On  the  30th  of  October  the  ship 
proceeded  to  Glasgow.  The  beans  were  materially  damaged  by  not 
being  dried  at  Liverpool. 

The  beans  might,  at  Liverpool,  have  been  removed  to  ware- 
houses for  the  purpose  of  being  spread  out  and  dried,  and  such 
accommodation  might  have  been  found  within  half  a  mile  of  the 
graving  dock.  This  would  have  caused  a  material  benefit  to  the 
beans,  and  materially  checked  the  process  of  decomposition.  The 
expense  of  unshipping,  drying,  and  reshipping,  according  to  the 
finding  in  the  case,  which  must  be  regarded  as  a  finding  in  fact, 
would  have  been  particular  average,  payable  by  the  owner  of  the 
cargo  ;  and  that  must  be  taken,  therefore,  to  have  been  a  reasonable 
and  proper  course  to  pursue,  so  far  as  the  shipper's  interest  was  con- 
cerned. 

It  is  not  stated  in  the  case  what, risk,  trouble,  expense,  or  delay, 
the  drying  would  have  caused.  In  the  absence  of  any  statement 
that  either  was  unreasonable,  and  acting  upon  the  power  of  "  draw- 
ing inferences  "  given  by  the  special  case,  the  court  below  appear  to 
have  arrived  at  the  conclusion  of  fact,  that  the  unshipping,  drying, 
and  reshipping  of  the  cargo  were,  under  the  circumstances,  as  to 
time  and  otherwise,  reasonable  and  proper  acts  to  be  done  by  the 
person  having  charge  of  the  cargo,  assuming  that  there  was 
any  legal  duty  imposed  upon  him  to  take  active  steps  for  that  pur- 
pose. 

During  the  stay  of  the  vessel  at  Liverpool,  the  shippers,  who 
were  on  the  spot,  called  the  shipowners'  attention,  through  their 
agent,  also  on  the  spot,  to  the  state  of  the  beans,  and  to  the  fact 
that  they  would  be  seriously  injured  unless  dried  at  once,  and  they 
requested  that  either  the  beans  should  be  taken  out  and  dried,  and 
then  reshipped  for  Glasgow,  or  that  they  should  be  delivered  at 
Liverpool  at  a  proportionate  freight,  so  that  the  shippers  might  dry 
them  for  themselves.     The  shipowners  refused  to  accede  to  either 


NOTARA   v.   HENDERSON.  185 

alternative.  They  offered  to  deliver  at  Liverpool,  upon  being  paid 
the  whole  freight ;  but  insisted  that,  unless  the  whole  freight  was 
paid,  they  had  a  right  to  retain  and  carry  on  the  beans,  undried,  and 
getting  worse  for  want  of  drying,  as  they  were,  in  order  to  earn  the 
whole  freight  upon  arrival  at  Glasgow,  provided  the  beans  arrived 
in  specie,  whatever  might  be  their  condition. 

The  shippers  refused  to  pay  more  than  the  freight  pro  rata,  and 
the  shipowners  took  on  the  beans  without  drying  them,  and  thereby 
occasioned  further  damage  to  the  beans,  which,  quite  exclusive  of 
the  damage  proximately  and  necessarily  caused  by  the  collision,  and 
limited  to  the  consequence  of  the  neglect  to  dry  (of  course  calcu- 
lated after  allowing  for  the  estimated  expense  of  unshipping,  dry- 
ing, and  reshipping),  has  by  consent  been  assessed  at  6661.  Is.  5d.  * 

The  value  of  the  cargo  at  Glasgow,  but  for  the  collision  and  its 
results,  proximate  and  remote,  would  have  been  3,500?.  Ihe  value  in 
the  state  in  which  it  arrived,  was  1,167/.  7s.  8(7.  The  entire  loss 
caused,  whether  proximately  or  remotely,  by  the  collision  was, 
therefore,  2,332/.  12s.  ±d.,  out  of  which  the  remote  loss  caused  by 
neglect  to  dry  amounts  to  6661.  Is.  5d.  The  shippers  do  not  claim 
in  respect  of  the  damage  necessarily  caused  by  the  collision  and 
its  unavoidable  results,  but  only  for  the  estimated  aggravation  of 
that  damage  by  reason  of  nothing  having  been  done  in  the  way  of 
drying  to  arrest  or  mitigate  decomposition,  and  for  that  amount 
(6661.  Is.  5d.)  they  obtained  judgment  in  the  Court  of  Queen's 
Bench. 

Upon  that  judgment  the  shipowners  have  assigned  error,  alleging 
that  they  were  entitled  to  retain  and  take  on  the  beans  in  their  wet 
state,  and  were  not  bound  to  do  anything  to  check  the  damage  occa- 
sioned by  the  collision. 

The  case  was  very  fully  and  ably  argued  by  Mr.  Field  for  the 
defendants  and  Mr.  Milward  for  the  plaintiffs,  before  the  Lord  Chief 
Baron  Martin,  Channell,  and  Cleasby,  BB.,  and  Willes,  Byles 
and  Keating,  JJ.,  and  we  took  time  to  consider  our  judgment. 

The  question  thus  raised  is  a  compound  one  of  law  and  fact ; 
tirst,  of  law,  whether  there  be  any  duty  on  the  part  of  the  ship- 
owners, through  the  master,  to  take  active  measures  to  prevent  the 

*  After  judgment  had  been  given  for  the  plaintiff  in  the  Queen's  Bench,  an  average- 
stater  was  appointed  under  a  judge's  order,  by  consent  of  the  parties,  to  assess  the  dam- 
ages, being  the  difference  between  the  damage  which  the  beims  would  probably  have 
sustained  if  unshipped  and  dried  at  Liverpool,  and  the  damage  which  they  actually 
sustained  by  being  carried  on  to  Glasgow.  The  arbitrator  awarded  666/.  Is.  5rf.,  and 
judgment  was  afterwards  entered  for  that  amount. 


186  CARRIERS. 

cargo  from  being  spoilt  by  damage  originally  occasioned  by  sea  acci- 
dents, without  fault  on  their  part,  and  for  the  proximate  and 
unavoidable  effects  of  which  accident  they  are  exempt  from  respon- 
sibility by  the  terms  of  the  bill  of  lading ;  and  secondly,  of  fact, 
whether,  if  there  be  such  a  duty,  there  was,  under  the  circumstances 
of  this  case,  a  breach  thereof  in  not  drying  the  beans. 

The  law,  up  to  a  certain  point,  is  clear  and  well  settled  by 
authority.  The  shippers,  though  upon  the  spot,  were  not  entitled 
to  the  possession  of  the  beans  for  any  purpose  without  paying  the 
full  freight  to  Glasgow.  That  freight  was  not  due,  but  the  ship- 
owners were  entitled  to  retain  the  goods  as  a  security  for  earning  it. 
The  offer  of  pro  rata  freight  may  have  been  reasonable,  but  it  was 
one  which  the  shipowners  were  not  bound  to  accept,  and  it  must 
be  treated  as  an  attempt  to  compromise,  not  affecting  the  rights  of 
the  parties,  though  it  may  bear  upon  the  reasonableness  of  the 
course  pursued,  assuming  such  reasonableness  to  be  material  in  de- 
termining the  question  of  neglect. 

It  was  argued  for  the  shipowners  that  the  fact  of  the  shippers 
being  upon  the  spot  negatived  any  implied  duty  on  the  part  of  the 
master,  as  agent  of  necessity,  to  take  care  of  the  goods ;  but  this 
argument  will  not  bear  examination.  The  shippers  were  present, 
but  they  could  not  lawfully  touch  the  goods  without  leave.  The 
shipowners  refused  to  let  them  do  so  without  payment  of  a  sum  not 
yet  earned,  and  insisted  upon  retaining  the  goods,  with  the  rights, 
and  consequently  the  duties,  of  the  original  bailment,  whatever 
those  might  be.  The  shippers  thereupon  insisted  upon  the  goods 
being  properly  taken  care  of  by  the  shipowners,  who  retained  the 
control  of  them  as  a  pledge  for  their  freight. 

That  a  duty  to  take  care  of  the  goods  generally  exists  cannot  be 
doubted  ;  and  the  question  raised  is,  whether  it  extends  to  incurring 
expense  and  trouble  in  preserving  the  cargo  from  destruction  or 
serious  deterioration  from  the  consequences  of  sea  accident,  for 
which  originally  the  shipowners  were  not  liable,  by  unshipping  and 
drying  it,  where  that  is  a  reasonable  and  ordinary  course  to  take,  and 
would  certainly  have  been  adopted  by  the  shippers  if  the  whole  ad- 
venture had  been  under  their  control  and  at  their  risk. 

It  is  remarkable  that,  upon  a  question  so  familiar  to  persons 
conversant  with  maritime  affairs,  and  which  has  so  constantly  to  be 
considered  from  another  point  of  view  in  settling  claims  upon  poli- 
cies of  insurance,  the  reported  authorities  in  this  country,  so  far  as 
regards  the  mutual  rights  and  liabilities  of  shipper  and  shipowner, 
should  be  so  rare.     The  onlv  case  in  which  it  was  much  discussed  is 


NOTARA   v.   HENDERSON.  187 

that  of  Tronson  v.  Dent  (8  Moo.  P.  C.  419).  That  was  an  action  by 
shipper  against  master  for  non-delivery  of  goods  pursuant  to  a  bill 
of  lading.  The  vessel,  the  Erin,  left  Calcutta  for  Hong  Kong  partly 
laden  with  opium,  suffered  damage  by  collision,  and  was  obliged  to 
put  into  Singapore  for  repair.  The  repair  lasted  twelve  days.  Part 
of  the  opium  was  damaged  by  salt  water  to  such  an  extent  that  the 
master,  acting  honestly,  thought  proper  to  sell  it,  and  the  amount 
realized  by  the  sale  was  paid  into  court.  The  shipper,  however, 
insisted  upon  recovering  the  value  of  the  opium  at  the  port  of 
discharge,  and  proceeded  to  trial,  where  evidence  was  given  that  the 
opium  might  have  been  carried  on  in  specie — at  least,  if  dried 
during  the  stay  for  repairs.  The  Chief  Justice  directed  the  jury  in 
effect  that,  if  the  master  could  "  with  reasonable  exertion "  have 
brought  on  the  damaged  opium  in  the  marketable  state  of  opium, 
either  in  the  Erin  or  in  some  other  vessel,  he  should  have  done  so. 
The  jury  found  for  the  plaintiff,  and  an  appeal  was  brought  to  the 
judicial  committee  upon,  amongst  other  grounds,  misdirection,  and 
that  the  verdict  was  against  the  weight  of  evidence.  The  direction 
was  criticised  in  the  judgment  delivered  by  Sir  John  Patteson  as 
follows  (8  Moo.  P.  C.  at  pp.  455-457)  :  "  An  objection  that  is  made 
to  his  summing  up  is  with  respect  to  these  words,  '  with  reasonable 
exertion,'  and  it  is  assumed  that,  by  the  words  '  reasonable  exertion ' 
he  told  the  jury  that  it  was  the  master's  duty  to  have  trans-shipped 
the  goods,  or  at  least,  that  it  was  his  duty  to  have  dried  the  opium  ; 
and  if  it  took  two  months  to  have  dried  the  opium,  it  was  his  duty  so 
to  have  done  after  he  himself  had  left  the  place,  because  he  clearly 
was  not  bound  to  keep  the  ship  there  for  the  purpose  of  doing  so. 
If  the  ship  could  have  been  repaired  in  twelve  days,  of  course  he 
could  have  gone  on  at  the  end  of  those  twelve  days ;  but  he  was 
bound  to  get  somebody  to  attend  to  the  drying  of  the  opium,  and 
then  to  forward  it  to  Hong  Kong.  I  think  it  is  a  great  stretch  of 
ingenuity  to  say  the  words  '  reasonable  exertion '  mean  all  that.  1 
do  not  know  what  the  words  '  reasonable  exertion '  actually  and 
necessarily  import,  but  certainly  there  was  some  exertion  which  it 
was  the  master's  duty  to  have  made  on  that  occasion.  It  is  stated, 
I  think,  by  foreign  authorities,  that  it  is  the  master's  duty  to  trans- 
ship ;  but  doubt  is  raised  as  to  that ;  and  in  our  courts  it  should 
seem  to  be  considered  that  he  is  quite  at  liberty  to  do  so,  and  that,  if 
he  does  trans-ship,  he  would  be  protected  in  doing  so,  if  it  turns 
out,  in  the  opinion  of  the  jury,  that  it  was  the  proper  course  of 
dealing  with  the  goods,  but  that  he  is  not  positively  bound  to  do  so. 
If  his  own  ship  cannot  carry  them  on  at  all,  he  may  either  leave 


188  CARRIERS. 

goods  which  are  not  perishable,  or  sell  goods  which  are  in  their 
nature  perishable,  which  cannot  be  carried  on,  which  must,  of 
course,  be  sold  ;  but  that  is  not  the  case  here.  But  although  he 
may  not  be  bound  to  trans-ship,  he  is  at  liberty  to  do  so.  In  other 
cases  it  has  been  held  that  he  ought  to  take  all  proper  care  of  the 
cargo ;  but  there  is  no  authority  that  I  know  of  which  distinctly 
shows  that  he  is  bound  to  lay  out  a  great  deal  of  money  in  order  to 
endeavor  to  repair  the  damage  done  to  the  cargo,  either  by  drying 
or  in  any  other  way.  While  the  cargo  is  there,  he  may  not  have  the 
means  of  doing  so.  He  is  bound  to  ventilate  it,  and  so  on  ;  but  that, 
I  apprehend,  is  while  it  is  on  board  the  ship.  And  I  think,  if  I  am 
not  mistaken,  there  is  some  case  of  a  ship  in  Ireland,  where  there 
was  a  cargo  of  corn,  and  the  question  was,  whether  it  could  be  kiln- 
dried,  and  whether  the  master  was  bound  to  kiln-dry  it  there.  The 
case  did  not  turn  on  whether  he  was  bound  to  do  so  ;  but,  if  I 
remember  the  case,  he  had  done  it,  and  the  question  was,  whether 
he  was  at  liberty  to  do  so.  It  was  clear  he  was  at  liberty  to  do  so  ; 
and  here  he  would  have  been  at  liberty  to  have  taken  steps  to  dry 
this  opium  during  the  twelve  days  he  was  at  Singapore.  Whether 
he  was  bound  to  do  it  or  not  need  not  be  determined  in  this  case  ; 
nor  do  I  find  that  it  was  laid  down  by  the  judge,  at  least,  I  cannot 
collect  from  his  language  here  that  he  laid  down  to  the  jury  that  the 
master  was  bound  to  do  any  such  thing,  but  merely  that  he  was 
bound  to  use  reasonable  exertion  to  have  brought  the  opium  on.  It 
is,  in  order  to  be  carried  on,  taken  out  of  the  vessel ;  therefore,  if 
by  reasonable  exertion  he  could  have  dried  the  outside  of  the  chests, 
and  put  them  back  into  the  vessel  afterwards  to  be  taken  to  Hong- 
Kong,  he  was  bound  surely  to  use  that  '  reasonable  exertion '  at  all 
events  "  .  .  .  "  On  the  whole  question  I  think  we  should  be  justified 
in  saying,  that  he  really  did  tell  the  jury  that  he  was  not  bound  to 
trans-ship  or  to  lay  out  a  great  deal  of  money  in  the  drying  of  the 
opium,  but  that  he  was  bound  to  carry  it  on  if  it  could  be  carried  on 
in  a  merchantable  state."  Upon  this  construction  the  direction  was 
sustained,  and  the  judgment  was  affirmed. 

This  judgment  of  the  judicial  committee,  though  it  does  not 
define  the  duty  of  the  master,  does  not  disaffirm  his  duty  to  take 
reasonable  care,  whether  passive  or  active,  to  save  and  preserve  a 
cargo  damaged  by  sea  accidents. 

The  effect  of  the  decision  appears  to  be,  that  the  duty  of  the 
master  to  use  "  reasonable  exertion  "  to  preserve  the  goods,  if  neces- 
sary, by  drying  them,  so  as  to  make  them  capable  of  being  taken  on 
in  specie,  was  recognized,  though  the  limits  of  the  duty  were  left 


NOTARA  v.   HENDERSON.  189 

unsettled.  It  was  suggested,  indeed,  that  the  duty  of  taking  active 
measures,  such  as  ventilating  the  cargo,  ordinarily  applied  to  doing 
so  on  board  the  ship,  and  that  under  no  circumstances  was  the 
master  bound  to  lay  out  a  "  great  deal  of  money  "  (limit  not  stated) 
in  drying  the  cargo.  It  was  assumed  that  the  master  was  not 
bound,  under  the  circumstances  of  that  case,  to  delay  beyond  the 
time  necessary  for  the  repairs  of  the  vessel.  This  assumption,  how- 
ever, can  hardly  be  taken  as  intended  for  a  proposition  of  law  uni- 
versally applicable,  but  rather  as  applicable  to  the  circumstance  that 
the  opium  then  in  question  was  only  a  part  of  the  cargo,  and  that 
delay  would  be  unreasonable  to  persons  equally  entitled  to  consider- 
ation as  the  plaintiff. 

The  existence  of  such  duty  to  take  active  measures  for  the  pres- 
ervation of  the  cargo  from  loss  or  deterioration  in  case  of  accidents 
is,  however,  distinctly  recognized  in  the  maritime  law  in  one  import- 
ant particular, — wherein  it  follows  the  civil  law,  which,  though  it  be 
not  recognized  as  jus  commune,  either  here  or  abroad,  in  mercantile 
or  maritime  affairs  (see  Baldasseroni,  leggi  del  cambio,  31)  has  been 
the  source  of  many  valuable  rules, — namely,  that  the  master  may 
incur  expense  for  the  preservation  of  the  cargo,  and  may  charge 
such  expense  against  the  owner  of  the  cargo  in  the  form  of  particu- 
lar average.  This  maritime  right  is,  in  one  point  of  view,  analogous 
to  that  of  salvage,  and  it  may  be  urged  that  the  services  in  respect 
of  which  it  is  rendered  should,  as  in  the  case  of  salvage,  be  looked 
upon  as  optional  and  not  obligatory.  There  is,  however,  this  marked 
distinction,  that  the  master,  as  representing  the  shipowner,  has  the 
charge  of  the  goods  under  contract  for  the  joint  benefit  of  the  ship- 
owner and  shipper,  and  falls  within  the  class  of  persons  who  are 
under  obligation  to  take  care  of  and  preserve  the  goods  as  bailees 
(Pothier,  Obligations,  art.  112,  and  Nantissement,  art.  29  et  seq.,  and 
as  to  extraordinary  expenses,  art.  60,  61  ;  and  also  under  the  special 
head  of  care  imposed  upon  masters,  Louages  Maritimes,  Chart  e- 
partie,  art.  31).  This  obligation  on  the  part  of  the  master  has  been 
commonly  recognized,  both  in  respect  of  preserving  goods  on  board 
in  a  state  of  safety  by  pumping,  ventilation,  and  other  proper  means, 
and  of  saving  goods  which  by  accident  have  been  exposed  to  danger. 
Thus,  even  in  case  of  wreck,  it  is  laid  down,  in  a  work  on  sea  laws, 
appproved  by  Lord  Stowell  (1  Hagg.  Adm.  at  p.  232),  that  the 
master  "  ought  to  preserve  the  most  valuable  goods  first,  and  by 
attention  and  presence  of  mind  endeavor  to  lessen  the  evil ;  and 
save,  or  help  to  save,  as  much  as  much  as  possible  "  (Jacobsen,  book 
2,  chap,  i,  p.  112).     It  is  recognized  in  the  French  Code  generally  in 


190  CARRIERS. 

article  222  ;  and  as  to  the  right  to  charge  the  cargo  with  particular 
average  for  extraordinary  expenses  incurred  to  preserve  it,  in  article 
403  [2]  ;  in  the  Spanish  Code  in  article  935  [1]  as  to  like  expenses ; 
and  in  the  German  Mercantile  Code,  with  its  usual  good  sense  and 
fullness,  in  article  504  ;  where  the  duty  of  the  master  to  take  care  of 
and  preserve  the  cargo  for  its  owners,  at  their  expense  (article  722), 
in  case  of  accident,  and  for  avoiding  or  lessening  the  loss  thereby 
occasioned,  is  specially  enforced  and  provided  for,  to  an  extent, 
perhaps,  beyond  what  our  own  law  has  yet  been  held  to  recognize. 
The  master  is  to  take  every  possible  care  of  the  cargo  during  the 
voyage,  in  the  interests  of  all  concerned.  When  special  measures 
are  required  to  avoid  or  lessen  a  loss,  he  is  to  protect  the  interests 
of  the  owners  of  the  cargo,  as  their  representative,  under  their 
direction,  if  possible,  otherwise  according  to  his  own  discretion, 
giving  an  account  of  what  he  has  done.  He  is,  in  such  cases,  spe- 
cially authorized  to  discharge  all  or  part  of  the  cargo.  In  extreme 
cases  to  avert  considerable  (erheblicher)  loss,  on  account  of  imminent 
deterioration  or  other  causes,  he  may  resort  to  sale  or  hypotheca- 
tion, to  procure  means  for  its  preservation  or  transport.  He  is  to 
reclaim  it  in  case  of  capture  or  detention,  and  to  take  all  extra- 
judicial or  judicial  steps  for  its  recovery,  if  otherwise  taken  out  of 
his  charge. 

There  are  unquestionably  cases  in  which  the  exercise  of  such  a 
duty  would  be  incumbent  upon  the  master,  as  representing  the 
owners  of  the  ship  and  for  their  interest.  As,  for  instance,  in  the 
case  of  a  perishable  cargo  so  damaged  by  salt  water  that  it  could 
not,  in  its  existing  state,  be  taken  forward  in  specie  to  the  port  of 
discharge,  so  as  to  earn  the  freight,  but  which  could,  at  an  expense 
considerably  less  than  the  freight,  be  dried  and  carried  on.  In  such 
a  case,  to  earn  the  freight,  it  might  be  for  the  interest  of  the  owner 
of  the  ship  to  save  the  cargo  by  drying.  To  sell  it,  or  abandon  it, 
would  give  no  right  to  freight  pro  rata  against  the  owner  of  the 
cargo,  nor  any  right  to  recover  against  the  underwriter  upon 
freight  (Mordy  v.  Jones,  4  B.  &  C.  394  ;  recognized  in  Philpott  v. 
Swann,  11  C.  B.  1ST.  S.  at  p.  281  ;  30  L.  J.  C.  P.  at  p.  360).  In 
Mordy  v.  Jones  (4  B.  &  C.  394),  the  cargo  was  so  damaged  that  it 
would  have  cost  more  than  the  freight,  though  less  than  the  value 
of  the  cargo,  to  restore  it,  and  no  question  arose  as  to  the  right  of 
the  owner  of  the  cargo,  because  he  consented  to  the  sale,  but  we 
are  at  present  supposing  a  case  in  which  it  would  have  been  for  the 
shipowner's  interest  to  dry  and  save  the  goods  ;  as,  if  the  freight 
were  1,000^.,  the  expense  of  drying  1001.,  and  the  rest  of  the  voyage 


NOTARA   v.   HENDERSON.  191 

so  long  that,  but  for  the  drying,  fermentation  would  destroy  the 
specific  character  of  the  cargo  before  arrival.  In  such  a  case,  if  the 
process  were  also  for  the  benefit  of  the  owner  of  the  cargo,  the 
expenses  would  have  fallen,  according  to  the  ordinary  practice,  upon 
the  cargo  as  particular  average.  It  is  clear,  therefore,  that  there  are 
cases  in  which  it  is  the  duty  of  the  master  to  save  and  dry  the 
cargo,  even  as  between  him  and  his  owner,  though  the  expense  of 
his  performing  that  duty  fall  upon  the  cargo  saved.  Can  it  be  that 
this  duty  of  taking  care  of  the  cargo,  by  active  measures  if  neces- 
sary, at  the  expense  of  the  cargo,  is  owing  only  to  the  shipowner, 
or  that  it  is  other  than  a  duty  to  take  reasonable  care  of  the  cargo, 
both  in  its  sound  state  and  in  arresting  the  damage  to  which  it  has 
become  liable  by  accidents  of  the  sea,  for  the  benefit  of  all  who  are 
concerned  in  the  adventure  ? 

In  the  result  it  apppears  to  us  that  the  duty  of  the  master,  in 
this  respect,  is  not,  like  the  authority  to  trans-ship,  a  power  for  the 
benefit  of  the  shipowner  only  to  secure  his  freight  (De  Cuadra  v. 
Swann,  16  C.  B.  N.  S.  772),  but  a  duty  imposed  upon  the  master, 
as  representing  the  shipowner,  to  take  reasonable  care  of  the  goods 
intrusted  to  him,  not  merely  in  doing  what  is  necessary  to  preserve 
them  on  board  the  ship  during  the  ordinary  incidents  of  the  voyage, 
but  also  in  taking  reasonable  measures  to  check  and  arrest  their  loss, 
destruction  or  deterioration,  by  reason  of  accidents,  for  the  neces- 
sary effects  of  which  there  is,  by  reason  of  the  exception  in  the  bill 
of  lading,  no  original  liability. 

The  exception  in  the  bill  of  lading  was  relied  upon  in  this  court 
as  completely  exonerating  the  shipowner  ;  but  it  is  now  thoroughly 
settled  that  it  only  exempts  him  from  the  absolute  liability  of  a 
common  carrier,  and  not  from  the  consequences  of  the  want  of 
reasonable  skill,  diligence,  and  care,  which  want  is  popularly  de- 
scribed as  "  gross  negligence."  This  is  settled,  so  far  as  the  repairs 
of  the  ship  are  concerned,  by  the  judgment  of  Lord  "Wensletdale 
in  Worms  v.  Storey  (11  Ex.  at  p.  430  ;  25  L.  J.  Ex.  at  p.  3) ;  as  to 
her  navigation,  by  a  series  of  authorities  collected  in  Grill  v.  General 
Iron  Screw  Collier  Co.  (Law  Rep.  1  C.  P.  600  ;  Law  Rep.  3  C.  P. 
476) ;  and  as  to  her  management,  so  far  as  affects  the  case  of  the 
cargo  itself,  in  Laurie  v.  Douglas  (15  M.  &  "W.  746),  where  the 
court  (in  a  judgment  unfortunately  not  reported  at  large)  upheld  a 
ruling  of  Pollock,  C.  B.,  that  the  shipowner  was  only  bound  to 
take  the  same  care  of  the  goods  as  a  person  would  of  his  own  goods, 
viz.,  "  ordinary  and  reasonable  care."  These  authorities  and  the 
reasoning  upon  which  they  are  founded  are  conclusive  to  show  that 


192  CARRIERS. 

the  exemption  is  from  liability  for  loss  which  could  not  have  been 
avoided  by  reasonable  care,  skill,  and  diligence,  and  that  it  is  inap- 
plicable to  the  case  of  a  loss  arising  from  the  want  of  such  care,  and 
the  sacrifice  of  the  cargo  by  reason  thereof,  which  is  the  subject- 
matter  of  the  present  complaint. 

It  was  also  argued,  that  if  there  was  any  default  of  duty,  it  was 
the  fault  of  the  master  exclusively,  and  not  of  the  shipowners. 
This  argument  might  have  had  some  plausibility,  if  the  vessel  had 
been  wrecked  or  abandoned,  and  the  objectionable  conduct  of  the 
master  had  not  taken  place  in  the  course  of  his  employment  and  for 
the  supposed  benefit  of  his  owners.  The  master  is  the  general  agent 
of  the  owner  for  the  purpose  of  the  voyage,  and  for  the  exercise  of 
that  agency  is  intrusted  with  powers,  to  be  used  at  his  discretion,  in 
which  the  owner  who  selects  him  is  satisfied  to  confide.  If,  there- 
fore, the  master  exercises  a  power  which  circumstances  might 
justify,  so  that  it  is  within  the  general  scope  of  his  functions,  and  it 
turns  out  that  the  facts  do  not  warrant  its  exercise  in  the  particular 
instance,  as,  for  instance,  if  he  unnecessarily  throw  goods  overboard 
in  a  panic,  or  sell  goods  without  justifying  need,  the  owners  are 
held  liable  for  his  acts,  according  to  the  rule,  "  Omnia  facta  magis- 
tri  debet  jprcestare  qui  eum  prceposuit "  (Pothier,  Louages  Maritimes, 
48  ;  Ewbank  v.  Nutting,  7  C.  B.  797) ;  and  for  a  like  reason  they 
must  be  liable  for  his  culpable  omissions. 

For  these  reasons  we  think  the  shipowners  are  answerable  for 
the  conduct  of  the  master,  in  point  of  law,  if,  in  point  of  fact,  he 
was  guilty  of  a  want  of  reasonable  care  of  the  goods  in  not  drying 
them  at  Liverpool. 

This  raises,  in  the  end,  the  question  of  fact,  whether  there  was  a 
breach  of  the  duty  thus  affirmed,  a  question  which,  though  properly 
one  for  a  jury,  we  are,  under  the  power  given  in  the  special  case,  to 
draw  inferences  of  fact,  and  the  32d  section  of  the  common  law 
procedure  act,  1854,  bound  to  determine.  It  is  obvious  that  the 
proper  answer  must  depend  upon  the  circumstances  of  each  partic- 
ular case,  and  that  the  question,  whether  active  special  measures 
ought  to  have  been  taken  to  preserve  the  cargo  from  growing 
damage  by  accident,  is  not  determined  simply  by  showing  damage 
done  and  suggesting  measures  which  might  have  been  taken  to 
prevent  it.  A  fair  allowance  ought  to  be  made  for  the  difficulties 
in  which  the  master  may  be  involved.  The  performance  of  such  a 
duty,  whether  it  be  for  the  joint  benefit  of  the  shipowner  and  the 
shipper,  or  for  the  benefit  of  the  shipper  only,  could  not  be  excused 
by  reason  of  insignificant  delay  not  amounting  to  deviation ;    and 


NOTARA   t.    HENDERSON.  193 

there  are  many  cases  of  reasonable  delay  in  ports  of  call,  for  pur- 
poses connected  with  the  voyage  though  not  necessary  for  its  com- 
pletion, which  do  not  amount  to  deviation.  It  could  not  be  insisted 
upon  if  a  deviation  were  involved.  The  place,  the  season,  the 
extent  of  the  deterioration,  the  opportunity  and  means  at  hand,  the 
interests  of  other  persons  concerned  in  the  adventure,  whom  it 
might  be  unfair  to  delay  for  the  sake  of  the  part  of  the  cargo  in 
peril ;  in  short,  all  circumstances  affecting  risk,  trouble,  delay,  and 
inconvenience,  must  be  taken  into  account.  Nor  ought  it  to  be 
forgotten  that  the  master  is  to  exercise  a  discretionary  power,  and 
that  his  acts  are  not  to  be  censured  because  of  an  unfortunate 
result,  unless  it  can  be  affirmatively  made  out  that  he  has  been 
guilty  of  a  breach  of  duty. 

In  the  present  case  the  circumstances  affecting  the  propriety  of 
drying  the  beans  are  not  stated  in  detail,  and  a  good  deal  is  left  to 
our  general  knowledge  and  experience.  It  is  common  knowledge 
that  beans  are  a  cargo  which  specially  suffers  from  damp,  that  the 
effects  of  the  damp  spread  and  are  aggravated  from  hour  to  hour,, 
that  such  a  cargo,  therefore,  if  damp,  ought  to  be  dried,  if  reason- 
ably possible,  and  not  sent  on  in  a  state  of  fermentation.  It  must 
be  taken  from  the  finding  as  to  particular  average,  that  such  drying 
would  have  been  a  reasonable  and  prudent  course  in  the  interest  of 
the  shippers,  and  one  which  they  would  have  been  sure  to  take  if 
they  had  been  owners  of  the  whole  adventure.  The  facts  stated  are 
all  in  favor  of  the  conclusion  that  the  beans  might  have  been  dried, 
during  an  insignificant  delay,  at  a  moderate  expense,  which  there 
would  have  been  no  difficulty  in  providing  from  or  upon  the-  credit 
of  the  shippers  ;  and  no  circumstance  is  stated  to  show  any  special 
risk,  trouble,  inconvenience,  or  other  objection.  The  master  thought 
proper,  as  he  was  entitled  to  do,  to  reject  the  offer  of  the  shippers 
to  take  the  beans  out  of  his  hands  upon  terms  not  unreasonable,  and 
insisted,  as  he  was  entitled  to  do,  upon  keeping  them  in  pledge  for 
the  future  freight ;  and  having  done  so,  he  thought  proper  to  reship 
and  replace  a  large  part  of  them  and  put  to  sea  with  them,  in  a 
state  in  which  no  prudent  or  reasonable  man  would  have  shipped  or 
put  to  sea  with  them,  taking  the  risk  of  their  arriving  at  Glasgow 
just  in  the  state  of  beans,  so  as  to  carry  full  freight  for  the 
shipowners,  but  largely  deteriorated  by  the  fermentation  during  the 
transit. 

We  thus  agree  with  the  court  below,  that  the  duty  exists  in  law. 
and  that,  under  the  circumstances,  the  breach  of  duty  is  sufficiently 
13 


19-t  CARRIERS. 

made  out  in  fact,  and  that  the  defendants,  as  shipowners,  are  liable 
in  damages. 

The  judgment  of  the  Court  of  Queen's  Bench  must  therefore  be 
affirmed. 

Judgment  affirmed. 


Railway  Company  ;  Liability  for  Want  of  Punctuality  ; 
Measure  of  Damages  ;  Special  Train. 


[1876.]    Le  Blanche  v.  The  London  and  Northwestern 
Railway  Company  (L.  R.  1  C.  P.  D.  286).* 

Railway  company  ;  liability  for  unpunetuality  ;  special  train. 

The  plaintiff  took  a  ticket  for  Scarborough  at  the  defendants' 
station  at  Liverpool.  The  journey  from  Liverpool  to  Scarborough 
is  via  Leeds  and  York.  The  defendants'  train  only  goes  to  Leeds  ; 
and  from  Leeds  to  Scarborough  the  journey  is  over  the  lines  and  by 
the  trains  of  other  companies.  The  ticket  referred  to  the  conditions 
in  the  defendants'  published  time  bills,  of  which  the  most  material 
part  was  as  follows  :  "  The  published  train  bills  are  only  intended. to 
fix  the  time  at  which  passengers  may  be  certain  to  obtain  tickets  for 
any  journey  from  the  various  stations,  it  being  understood  that  the 
trains  shall  not  start  before  the  appointed  time.  Every  attention 
will  be  paid  to  insure  punctuality,  so  far  as  it  is  practicable  ;  but  the 
directors  give  notice  that  the  company  do  not  undertake  that  the 
trains  shall  start  or  arrive  at  the  time  specified  in  the  bills,  nor  will 
they  be  accountable  for  any  loss,  inconvenience,  or  injury  which  may 
arise  from  delays  or  detention.  .  .  .  The  granting  of  tickets  to 
passengers  to  places  off  the  company's  line  is  an  arrangement  made 
for  the  convenience  of  the  public  ;  but  the  company  do  not  hold 
themselves  responsible  for  any  delay,  detention,  or  other  loss  or  in- 
jury whatsoever  arising  off  their  lines,  or  from  the  acts  or  defaults  of 
other  parties,  nor  for  the  correctness  of  the  times  over  lines  of  other 
companies,  nor  for  the  arrival  of  this  company's  own  trains  in  time  for 
the  nominally  corresponding  train  of  any  other  company  or  party." 

The  train  by  which  the  plaintiff  traveled  was  too  late  at  Leeds 

*  This  report  merely  gives  the  summary  of  the  facts,  of  the  decision  of  the  court, 
and  of  the  opinions  expressed  by  the  judges  individually  in  reference  to  the  questions  of 
damages.     It  has  not  been  thought  necessary  to  republish  the  original  report  in  exteiiso. 


LE  BLANCHE  v.  THE  LONDON  AND  NORTHWESTERN  RAILWAY  CO.  195 

to  catch  the  train  by  which  the  plaintiff  should  have  proceeded  to 
York  ;  and  when  the  plaintiff  did  arrive  at  York,  at  about  7  p.  m.,  he 
found  that  the  train  for  Scarborough,  which  he  should  have  caught, 
had  gone,  and  that  the  next  train  for  Scarborough  did  not  start  till 
8  p.  m.,  arriving  at  about  10  p.  m.  He  thereupon  took  a  special  train 
from  the  North  Eastern  Company,  which  arrived  at  Scarborough  be- 
tween 8.30  and  9  p.  m.  The  plaintiff  had  no  business  or  engagement 
in  Scarborough  necessitating  his  being  there  at  any  particular  time. 

The  plaintiff  brought  an  action  against  the  defendants  in  the 
county  court,  and  the  county  court  judge  held  that  there  was  a  con- 
tract on  the  defendants'  part  to  use  due  diligence  to  insure  punctuality, 
and  that,  upon  the  facts,  there  had  not  been  such  diligence  used.  He 
also  held  that  the  plaintiff  was  entitled  to  recover  the  cost  of  the 
special  train,  on  the  authority  of  the  dictum  of  Alderson,  B.,  in 
Hamlin  v.  Great  Northern  Railway  Co.  (26  L.  J.  Ex.  22),  that 
"  where  one  party  to  a  contract  does  not  perf  orm  it,  the  other  may 
do  so  for  him  as  near  as  may  be,  and  charge  him  for  the  expense  in- 
curred in  so  doing." 

On  appeal  to  the  Court  of  Common  Pleas,  that  court  affirmed  the 
judgment  of  the  county  court  judge.  On  appeal  from  that  decision 
to  the  High  Court  of  Appeal : 

Held  (reversing  the  decision  of  the  Common  Pleas),  that  the 
county  court  judge  was  wrong  in  acting  on  the  dictum  above  men- 
tioned as  an  absolute  rule.  The  principle  is,  that  if  one  party  does 
not  perform  his  contract,  the  other  may  do  so  for  him  as  reasonably 
near  as  may  be,  and  charge  him  for  the  reasonable  expense  incurred 
in  so  doing ;  and  a  proper  test  of  what  is  reasonable  in  such  a  case 
as  the  plaintiff's  is  to  consider  whether,  according  to  the  ordinary 
habits  of  society,  a  person  delayed  on  his  journey,  under  circum- 
stances for  which  the  company  were  not  responsible,  would  have  in- 
curred the  expenditure  in  question  on  his  own  account  : 

Held,  also,  by  the  majority  of  the  court  (James  and  Mellish, 
L.JJ.,  Baggallay,  J.A.,  and  Mellor,  J.),  that  the  words  "  Every  at- 
tention will  be  paid  to  insure  punctuality  as  far  as  practicable  "  did 
import  a  contract  to  use  due  attention  to  keep  the  times  specified  in 
the  time  bills  as  far  as  practicable,  having  regard  to  the  necessary 
exigencies  of  the  traffic  and  circumstances  over  which  the  company 
had  no  control. 

Per  Cleasby,  B. — The  effect  of  the  conditions  was  that  the  com- 
pany declined  to  enter  into  any  contract  as  to  the  times  specified  in 
the  time  bills,  whether  absolute  or  qualified. 

Per  Baggallay,  J. A. — The  contract  in  the  conditions  was  such 


106  CARRIERS. 

as  to  protect  the  defendants  from  any  further  liability  in  a  case  where 
they  issued  a  through  ticket  than  they  would  have  incurred  if  they 
had  only  issued  a  ticket  to  the  farthest  point  of  the  journey  on  their 
own  system. 

Per  James,  L.  J. — The  true  meaning  of  the  contract  was,  that  the 
persons  in  the  management  of  the  train  would,  with  regard  to  the 
particular  train  on  that  particular  journey,  use  due  attention  to  in- 
sure punctuality,  but  that  the  defendants  were  not  to  be  held  re- 
sponsible for  delays  arising  from  circumstances  unconnected  with  the 
management  of  the  particular  train. 

The  learned  judges  in  the  Court  of  Appeal  agreed  that  the 
plaintiff  was  not  entitled  to  take  the  special  train,  charging  the  de- 
fendant with  the  cost  of  it,  and  that,  therefore,  damages  which  in- 
cluded a  recovery  for  that  expense  were  erroneously  assessed. 


Carrier's  Breach  of  Contract  ;  Notice  of  Special  Circumstances. 


[1873.]  HOENE  AND  ANOTHER  V.  MIDLAND  EAILWAY  COM- 
PANY (L.  E.  8  C.  P.  131  ;  42  L.  J.  E.  C.  P.  59 ; 
affirming  L.  E.  7  C.  P.  583). 

The  plaintiffs,  being  shoe  manufacturers  at  Kettering,  were  under  a  contract  to  supply  a 
quantity  of  military  shoes  to  a  firm  in  London  for  the  use  of  the  French  army,  at  4s.. 
per  pair,  an  unusually  high  price.  The  shoes  were  to  be  delivered  by  the  3d  of 
February,  1871,  and  the  plaintiffs  accordingly  sent  them  to  the  defendants'  station 
at  Kettering  for  carriage  to  London  in  time  to  be  delivered  there  in  the  usual  course 
in  the  evening  of  that  day,  when  they  would  have  been  accepted  and  paid  for  by  the 
consignees.  Notice  was  given  to  the  station  master  (which  for  the  purposes  of  the 
case  was  assumed  to  be  notice  to  the  company)  at  the  time  that  the  plaintiffs  were 
under  a  contract  to  deliver  the  shoes  by  the  3d,  and  that  unless  they  were  so  deliv- 
ered they  would  be  thrown  on  their  hands ;  but  he  was  not  informed  that  there  was 
anything  exceptional  in  the  character  of  the  contract.  The  shoes  were  not  delivered 
in  London  till  the  4th  of  Februar}-,  and  were  consequently  not  accepted  by  the  con- 
signees, and  the  plaintiffs  were  obliged  to  sell  them  at  2«.  9d.  a  pair,  which,  in  con- 
sequence of  the  cessation  of  the  French  war,  was,  apart  from  the  previously  men- 
tioned contract,  the  best  price  that  could  have  been  obtained  for  them,  even  if  they 
had  been  delivered  on  the  evening  of  the  3d  of  February,  instead  of  the  morning  of 
the  4th. 

In  an  action  against  the  defendants  for  the  delay  in  delivering  the  shoes,  they  paid  into 
court  a  sufficient  sum  to  cover  any  ordinary  loss  occasioned  thereby,  but  the  plaint- 
iffs further  claimed  the  sum  of  267/.  3s.  9d.,  the  difference  between  the  price  at  which 
they  had  contracted  to  sell  the  shoes  and  the  price  which  they  ultimately  fetched  : 


IIORNE   v.    MIDLAND  RAILWAY  CO.  197 

Held  (per  Kelly,  C.  B.(  Blackburn,  J.,  Mellor,  J.,  Maetin,  B.,  and  Cleasby,  B.,  Lush,  J., 
and  Pigott,  B.,  dissenting),  that  the  plaintiffs  were  not  entitled  to  recover  the  latter 
sum,  the  damage  not  being  such  as  might  reasonably  be  considered  as  arising  nat- 
urally from  the  defendants'  breach  of  contract,  or  such  as  might  be  reasonably  sup- 
posed to  have  been  in  the  contemplation  of  both  parties  at  the  time  when  they  made 
the  contract: 

Per  Kelly,  C.  B.,  Blackburn,  J.,  and  Mellor,  J.,  and  Cleasby,  B.,  the  notice  given  to  the 
defendants  was  Dot  such  that  they  could  reasonably  be  supposed  to  have  had  in 
their  contemplation,  at  the  time  of  entering  into  the  contract  for  the  carriage  of  the 
shoes,  damages  of  such  an  exceptional  nature  as  those  claimed:'' 

Per  Martin,  B.,  and,  semble,  per  Blackburn,  J.,  and  Lush,  J.,  a  mere  notice  as  such  could 
not  have  the  effect  of  rendering  the  defendants  liable  to  more  than  ordinary  dam- 
ages ;  but  it  must,  in  order  to  do  so,  be  given  under  such  circumstances  as  to  make  it 
a  term  of  the  contract  that  the  defendants  will  be  liable  for  such  damages  if  the 
contract  be  broken : 

Per  Lush,  J.,  and  Pigott,  B.,  the  notice  given  to  the  defendants  was  sufficient  to  put  them 
upon  inquiry  as  to  the  nature  of  the  contract  which  the  plaintiffs  were  under,  and  if 
they  chose  to  accept  the  goods  for  carriage  without  further  inquiry,  they  took  the 
risk  of  what  the  contract  might  turn  out  to  be,  and  were  liable  to  the  plaintiffs  for 
the  loss  actually  occasioned. 

Hadley  v.  Baxendale  (9  Ex.  341 ;  23  L.  J.  Ex.  179),  discussed. 

Error  from  the  judgment  of  the  Court  of  Common  Pleas  upon 
a  special  case  reported  Law  Rep.  7  C.  P.  583. 

Field,  Q.  C.  {Lumley  Smith  with  him),  for  the  plaintiffs.  Pri- 
ma facie  the  measure  of  damages  is  the  amount  of  damage  actually 
sustained.  This  rule  is  subject  to  the  limitation  that  if  the  damages 
are  exceptional,  and  such  as  the  parties  cannot  be  reasonably  sup- 
posed to  have  contemplated  when  they  entered  into  the  contract, 
they  cannot  be  recovered.  In  the  present  case  the  defendants  must 
be  taken  to  have  contemplated  the  possibility  of  these  damages  oc- 
curring. Notice  was  given  to  their  servant  that  the  plaintiffs  had  a 
contract,  and  also  that  it  was  a  profitable  one,  or  else  the  shoes  would 
not  be  likely  to  be  thrown  on  their  hands.  This  was  sufficient  to 
put  the  person  receiving  the  goods  on  inquiry  as  to  what  the  nature 
of  the  contract  was  ;  and  no  such  inquiry  having  been  made,  the  de- 
fendants must  be  looked  upon  as  having  taken  the  risk  of  what  it 
might  turn  out  to  be,  and  cannot  now  say  that  they  did  not  contem- 
plate the  damages.  In  France  v.  Gaudet  (Law  Rep.  6  Q.  B.  199),  in 
a  case  of  trover,  it  was  held  that  the  plaintiff  could  recover  the 
amount  of  the  price  at  which  he  had  resold  the  champagne  which 
was  converted. 

[Mellok,  J. — That  case  was  peculiar.  Champagne  of  a  similar 
quality  was  said  not  to  be  procurable  in  the  market.  There  was, 
therefore,  no  other  test  of  the  value  of  the  goods.] 

The  value  of  the  goods  is  the  value  that  they  have  to  the  indi- 


19S  CARRIERS. 

vidual,  and  that  is  what  he  is  entitled  to  recover  (Wilson  v.  The  Lan- 
cashire and  Yorkshire  Ky.  Co.  9  C.  B.  K  S.  682 ;  30  L.  J.  C.  P. 
232).  The  case  falls  within  the  principles  laid  down  in  Riley  v.. 
Home  (5  Bing.  217,  222).  If  the  carrier  does  not  choose  to  in- 
(jnire  as  to  the  value  of  the  goods,  he  takes  the  chance  of  what  they 
may  tnrn  out  to  be.  So  here  the  goods  had  a  certain  value  to  the 
plaintiff  by  reason  of  the  contract  he  had;  the  defendants  are  told 
that  there  is  such  a  contract,  and  they  do  not  choose  to  inquire  what 
it  is. 

[Blackburn,  J. — It  is  clear  the  plaintiff  gave  notice  that  it  was 
important  that  the  goods  should  be  delivered  on  the  3d,  but  he  gave 
no  notice  of  the  extraordinary  nature  of  the  contract.  There  is  a 
substantial  consideration  involved  ;  if  the  carrier  has  notice  of  an  ex- 
traordinary risk,  he  may  perhaps  charge  a  higher  rate  of  carriage  to 
cover  it.  The  real  meaning  of  the  limitation  as  to  damages  is  that 
the  defendant  shall  not  be  bound  to  pay  more  than  he  received  a 
reasonable  consideration  for  undertaking  the  risk  of  at  the  time  of 
making  the  contract.] 

Surely  it  cannot  be  necessary  for  a  man  to  go  with  his  contract 
in  his  hand,  or  to  say,  "  I  have  contracted  at  such  a  price."  It  is 
sufficient  if  notice  is  given  that  the  case  is  of  an  exceptional  nature. 
Substantially,  this  notice  amounted  to  an  intimation  that  an  impor- 
tant contract,  of  a  highly  beneficial  character,  was  at  stake. 

[Martin,  B. — Must  not  there  be  what  amounts  to  a  contract  to 
be  responsible  for  the  exceptional  damages  ?] 

In  the  case  of  Hadley  v.  Baxendale  (9  Ex.  341  ;  23  L.  J.  Ex. 
179),  it  is  stated  that,  "  if  the  special  circumstances  under  which  the 
contract  was  actually  made  were  communicated  by  the  plaintiff  to 
the  defendants,  and  thus  known  to  both  parties,  the  damages  result- 
ing from  such  breach  of  contract,  which  they  would  reasonably  con- 
template, would  be  the  amount  of  injury  which  would  ordinarily 
follow  from  a  breach  of  contract  under  these  special  circumstances 
so  known  and  communicated."  It  is  not  put  as  depending  on  a  con- 
tract. 

[Blackburn,  J. — In  Hadley  v.  Baxendale  (supra),  there  was  really 
no  affirmative  decision  that  a  mere  notice  as  such  would  be  sufficient, 
because  it  was  held  that  there  was  not  a  sufficient  notice  in  that  case. 
I  know  of  no  affirmative  decision  based  on  the  dictum  so  thrown  out 
in  Hadley  v.  Baxendale  (supra).'] 

The  notice  here  given  may  be  treated  as  evidence  of  a  contract. 
[He  also  cited  Gee  v.  Lancashire  and  Yorkshire  By.  Co.  (6  II.  &  N. 
211  ;  30  L.  J.  Ex.  11).] 


HORSE   v.   MIDLAND  RAILWAY  CO.  199 

II.  James,  Q.  C.  {Stv/rge  with  him).  The  inference  to  he  drawn 
from  the  case  is,  that  the  market  value  of  the  goods  on  the  day  when 
they  were  brought  to  the  defendants'  station  was  the  same  as  when 
they  were  ultimately  sold.  There  is  nothing  to  show  any  diminu- 
tion in  value  during  that  period.  Admitting  that  the  contract  of  the 
company  was  a  contract  to  carry  and  deliver  by  the  3d  of  February, 
and  was  broken,  the  question  is,  what  are  the  damages.  The  dam- 
ages are  those  for  which  the  defendants  have  contracted  to  be  re- 
sponsible ;  and  prima  facie  the  contract  is  to  be  responsible  for  any 
diminution  in  the  ordinary  market  value  of  the  goods  between  the 
day  on  which  they  ought  to  have  been  delivered  and  the  day  on 
which  they  actually  were  delivered,  and  no  such  diminution  is  shown 
here.  If  it  be  sought  to  impose  a  further  liability  on  the  defendants, 
it  is  necessary  to  prove  knowledge  of  the  special  facts  imparted  to 
them  under  such  circumstances  as  that  a  term  was  engrafted  into 
the  contract  that  they  should  be  liable  for  the  special  damage ;  see 
per  Willes,  J.,  in  British  Columbia  Saw  Mill  Co.  v.  Xettleship  (Law 
Rep.  3  C.  P.  508).  Then,  was  any  such  term  engrafted  into  the  con- 
tract here  \  All  the  defendants  were  told  was,  that  there  was  a  con- 
tract ;  nothing  was  said  as  to  the  exceptional  nature  of  that  contract, 
and  the  unnaturally  high  price  at  which  the  shoes  were  sold  arising 
out  of  the  peculiar  circumstances  of  the  case.  The  value  of  the  shoes 
must  be  considered,  for  the  purpose  of  estimating  the  damages,  as  the 
value  contemplated  by  both  parties,  not  that  which  is  known  to  the 
one  only,  and  not  communicated  by  him  to  the  other.  The  burden 
of  inquiry  is  not  thrown  on  the  carrier  in  such  a  case ;  it  is  for  the 
party  who  seeks  to  fix  him  with  the  consequences  of  knowledge  to 
communicate  the  circumstances  to  him.  If  mere  notice  is  not  suffi- 
cient as  such,  then  there  is  no  evidence  here  of  a  contract  to  be  liable 
for  the  .special  damage.  The  mere  receipt  of  the  goods  by  the  car- 
rier after  such  a  notice  as  was  given  here  does  not  amount  to  such  a 
contract.  The  company,  as  common  carriers,  are  bound  to  carry  the 
goods.  Assume,  for  the  purpose  of  argument,  that  the  carrier  would 
not  be  bound  to  carry  if  the  consignor  insisted  on  his  undertaking 
an  exceptional  liability,  or  might  be  entitled  to  insist  on  an  increased 
rate  in  consideration  of  his  contracting  to  bear  such  liability ;  still, 
in  order  to  raise  an  inference  that  the  carrier  has  contracted  to  bear 
such  liability,  the  consignor  must  have  acquainted  him  with  the 
nature  of  it. 

[Lush,  J. — If  your  argument  be  correct,  the  doctrine  suggested 
in  Hadley  v.  Baxendale  (9  Ex.  341  ;  23  L.  J.  Ex.  179),  as  to  the 
effect  of  notice,  is  wrong. 


200  CARRIERS. 

Maktin,  B. — If  a  contracting  party,  on  receiving  notice  of  the 
extraordinary  liability  sought  to  be  cast  on  him,  refused  to  undertake 
it,  clearly  he  would  not  be  liable.  Does  not  this  show  that  the 
right  to  exceptional  damages  depends  on  contract,  and  not  on  mere 
notice  ?] 

Assuming  that  notice  might  be  sufficient,  then  the  notice  here 
was  insufficient  to  bring  the  case  within  the  doctrine  in  Hadley  v. 
Baxendale  (supra).  [He  also  cited  Cory  v.  Thames  Ironworks  Co. 
(Law  Kep.  3  Q.  B.  181) ;  Smeed  v.  Foord  (1  E.  &  E.  602  ;  28  L.  J. 
Q.  B.  178)  ;  Great  "Western  Ey.  Co.  v.  Eedmayne  (Law  Kep.  1  C.  P. 
329).] 

Field,  Q.  C,  in  reply,  cited  Peninsular,  &c.  Co.  v.  Shand  (3  Moo. 
P.  C.  N.  S.  293) ;  Great  Northern  Ey.  Co.  v.  Behrens  (7  H.  &  N. 
950  ;  31  L.  J.  Ex.  299). 

Kelly,  C.  B. — I  am  of  opinion  that  the  judgment  of  the  court 
below  must  be  affirmed.  The  rules  by  which  this  case  must  be  de- 
termined are  the  creatures  of  authority,  and  we  have  not  so  much  to 
consider  in  determining  it  what  might  be  just  or  unjust,  reasonable 
or  unreasonable,  under  the  circumstances  of  the  case,  in  the  absence 
of  previous  decisions,  as  to  consider  the  cases  that  have  been  decided 
on  the  subject,  and  deduce  from  them  the  general  principles  that 
must  govern  our  judgment.  It  must,  in  the  first  place,  be  noticed 
that  this  is  the  case  of  a  railway  company,  though  it  does  not  seem 
to  have  occurred  to  the  court  below,  or  to  the  counsel  in  arguing 
the  case  there,  that  there  was  any  material  difference  between  the 
case  of  a  railway  company  and  that  of  any  ordinary  person  who  had 
contracted  for  the  delivery  of  goods.  It  therefore  becomes  incum- 
bent upon  us  to  consider  what  is  the  nature  of  the  ordinary  contract 
between  the  consignor  of  goods  and  the  carrier,  and  what  is  the  obli- 
gation imposed  upon  a  railway  company  in  respect  of  the  carriage 
of  goods  of  an  ordinary  character  such  as  those  in  the  present 
case. 

It  is  necessary,  however,  in  the  first  place,  to  deal  with  certain 
facts  that  were  made  the  subject  of  discussion  during  the  argument. 
Questions  were  raised  with  respect  to  the  market  price  of  the  shoes 
at  the  time  of  the  making  the  contract  for  the  sale  of  them,  at  the 
time  of  their  delivery  to  the  company,  and  at  the  time  when  they 
ought  to  have  been  delivered  to  the  consignees.  I  see,  however, 
nothing  whatever  stated  in  this  case  to  show  that  the  market  price 
of  the  shoes  at  any  time  which  it  will  be  material  for  us  to  consider 
was  more  than  the  sum  for  which  they  ultimately  sold,  viz.,  2s.  9d. 
a  pair.     We  are  not  even  told  when  the  contract  for  the  supply  of 


HORNE   v.    MIDLAND  RAILWAY  CO.  201 

the  shoes  was  entered  into  ;  it  is  only  stated  in  the  case  that  the 
plaintiffs  were  in  January  and  February,  1871,  under  contract  to  de- 
liver a  quantity  of  shoes.  Then,  with  regard  to  the  other  periods 
referred  to,  there  are  no  materials  whatever  laid  before  us  fro?n 
which  we  can  gather  what  the  market  price  was,  other  than  the  fact 
that  on  the  day  when  they  were  disposed  of  they  sold  for  2s.  ?id.  a 
pair.  It  seems  to  me,  therefore,  that  we  must  assume  that  the  only 
market  price  put  before  us,  viz.,  2*.  9d.  a  pair,  was  the  market  price 
at  the  other  periods  in  question.  That  being  so,  the  plaintiffs  deliver 
the  shoes  to  the  defendants  to  be  conveyed  by  them  to  London,  and 
there  delivered  on  the  3d  of  February,  and  they  intimate  to  the  de- 
fendants' servant  that  it  is  important  that  the  shoes  should  be  deliv- 
ered on  the  3d,  inasmuch  as  they  are  under  contract  to  deliver  them, 
and  they  will  be  thrown  on  their  hands  if  not  delivered.  It  is  con- 
tended by  the  defendants  that,  under  these  circumstances,  the  plaint- 
iffs can  only  recover  damages  calculated  according  to  the  ordinary 
value  of  the  goods.  A  question  of  very  great  importance  has  been 
raised  in  the  course  of  the  argument,  to  which  it  is  proper  to  refer, 
though,  for  reasons  I  shall  presently  state,  I  do  not  think  it  will  ulti- 
mately become  necessary  to  decide  it — that  is  to  say,  the  question 
what  the  position  of  a  railway  company  is  when  goods  are  intrusted 
to  it  for  carriage  with  an  intimation  of  the  consequences  of  non-de- 
livery, such  as  it  was  argued  on  behalf  of  the  plaintiffs  existed  in  the 
present  case.  The  goods  with  which  we  have  to  deal  are  not  the 
subject  of  any  express  statutory  enactment ;  the  case  with  respect  to 
them  depends  on  the  common  law  taken  in  connection  with  the  acts 
relating  to  the  defendants'  railway  company.  Now,  it  is  clear,  in 
the  first  place,  that  a  railway  company  is  bound,  in  general,  to  accept 
goods  such  as  these,  and  to  carry  them  as  directed  to  the  place  of 
delivery,  and  there  deliver  them.  But  now  suppose  that  an  intima- 
tion is  made  to  the  railway  company,  such  as  Mr.  Field  contended 
this  amounted  to,  not  merely  that  if  the  goods  are  not  delivered  by 
a  certain  date  they  will  be  thrown  on  the  consignor's  hands,  but  in 
express  terms  stating  that  they  have  entered  into  such  and  such  a 
contract  and  will  lose  so  many  pounds  if  they  cannot  fulfill  it,  what 
is  then  the  position  of  the  company  %  Are  they  the  less  bound  to 
receive  the  goods  %  I  apprehend  not.  If,  then,  they  are  bound  to 
receive,  and  do  so  without  more,  what  is  the  effect  of  the  notice  ? 
Can  it  be  to  impose  upon  them  a  liability  to  damages  of  any  amount, 
however  large,  in  respect  of  goods  which  they  have  no  option  but  to 
receive  ?  I  cannot  find  any  authority  for  the  proposition  that  the 
notice  without  more  could  have  any  such  effect.     It  does  not  appear 


202  CARRIERS. 

to  me  that  the  railway  company  lias  any  power,  such  as  was  suggest- 
ed, to  decline  to  receive  the  goods  after  such  a  notice,  unless  an  ex- 
traordinary rate  of  carriage  be  paid.  Of  course  they  may  enter  into 
a  contract,  if  they  will,  to  pay  any  amount  of  damages  for  non-per- 
foimance  of  their  contract,  in  consideration  of  an  increased  rate  of 
carriage,  if  the  consignors  be  willing  to  pay  it ;  but  in  the  absence 
of  aiiV  such  contract  expressly  entered  into,  there  being  no  power  on 
the  part  of  the  company  to  refuse  to  accept  the  goods,  or  to  compel 
payment  of  an  extraordinary  rate  of  carriage  by  the  consignor,  it 
does  not  appear  to  me  any  contract  to  be  liable  to  more  than  the  or- 
dinary amount  of  damages  can  be  implied  from  mere  receipt  of  the 
goods  after  such  a  notice  as  before  mentioned. 

For  these  reasons,  even  if  the  notice  given  in  the  present  case 
could  be  taken  as  having  the  effect  contended  for  by  Mr.  Field,  I  do 
not  think,  in  the  absence  of  any  expressed  or  implied  contract  by  the 
company  to  be  liable  to  these  damages,  that  there  could  be  any  such 
liability  imposed  upon  them.  But  however  this  may  be,  and  even 
assuming  that  there  might  be  such  a  notice  as  would  rentier  the  com- 
pany  liable  to  the  exceptional  damages  claimed  by  the  plaintiffs,  I 
am  clearly  of  opinion  that  the  intimation  given  to  the  company  in 
this  case  does  not  amount  to  such  a  notice.  It  certainly  gave  the 
defendants  notice  of  what  might  probably  be  assumed  to  be  the  case 
without  express  notice,  viz.,  that  the  plaintiffs  being  under  contract 
to  deliver  the  shoes,  would  have  them  thrown  on  their  hands  if  not 
delivered  in  due  time,  but  it  gave  the  defendants  no  notice  of  the 
exceptional  nature  of  the  contract  and  the  unusual  loss  that  would 
result  from  a  breach  of  it.  That  being  so,  the  case  comes  within  the 
principle  clearly  to  be  deduced  from  all  the  authorities  (not  except- 
ing the  case  of  Hadley  v.  Baxendale,  [9  Ex.  341  ;  23  L.  J.  Ex.  179], 
itself,  whatever  view  may  be  taken  of  the  dictum  in  that  case  with 
respect  to  the  effect  of  notice),  viz.,  that  the  damages  for  a  breach 
of  contract  must  be  such  as  may  fairly  and  reasonably  be  considered 
as  arising  naturally,  i.  e.,  according  to  the  usual  course  of  things, 
from  such  breach  of  contract  itself,  or  such  as  may  be  reasonably 
supposed  to  have  been  in  the  contemplation  of  both  parties,  at  the 
time  they  made  the  contract,  as  the  probable  result  of  the  breach  of 
it.  The  effect  of  the  notice  here  is,  that  the  company  must  be  taken 
to  have  contemplated  that  the  plaintiffs  were  under  a  contract  to  de- 
liver the  shoes,  and  would  be  liable  to  lose  the  benefit  of  such  con- 
tract, or  to  an  action  for  breach  of  it,  if  they  failed  to  deliver  under 
it.  The  loss  they  would  in  the  usual  course  of  things  sustain  or  the 
damages  they  would  have  to  pay  on  such   a  contract   would   depend 


HORNE   v.    MIDLAND  RAILWAY  CO.  203 

upon  the  rise  or  fall  of  the  market  price.  We  are  not  told  when  the 
contract  for  the  sale  of  the  shoes  was  made,  nor  what  was  the  market 
price  at  that  time.  It  appears  to  me,  therefore,  that  the  only  damage 
we  can  consider  is  the  difference  between  the  market  price  at  the 
time  when  the  goods  ought  to  have  been  delivered  and  the  market 
price  at  the  time  when  they  were  delivered.  There  is  no  evidence 
before  us  to  show  that  the  market  value  of  the  shoes  at  the  time 
when  they  were  delivered  to  the  defendants,  or  at  the  time  when 
they  ought  to  have  been  delivered  to  the  consignees,  differed  from 
their  value  at  the  time  when  they  were  ultimately  sold.  So  far  as 
appears  from  the  case,  it  seems  to  me  that  it  must  be  taken  that  the 
market  price  was  the  same  at  all  those  periods.  Under  those  circum- 
stances, in  the  absence  of  any  notice  to  the  defendants  of  the  excep- 
tional nature  of  the  contract  into  which  the  plaintiffs  had  entered,  I 
think  the  plaintiffs  are  only  entitled  to  nominal  damages,  unless,  per- 
haps, in  respect  of  expenses,  if  any,  that  were  incurred,  which  would 
be  amply  covered  by  the  amount  paid  into  court.  It  appears  to  me 
that  very  serious  consequences  might  result  from  making  a  railway 
company  liable  upon  a  mere  notice  that  the  consignor  is  under  con- 
tract to  deliver,  such  as  that  in  the  present  case,  for  an  indefinite 
amount  of  damages  arising  out  of  a  contract  of  a  highly  exceptional 
nature,  entered  into  under  very  special  circumstances. 

Maetot,  B. — After  feeling  considerable  doubt  in  the  course  of 
the  argument,  I  have  at  length  arrived  at  the  same  conclusion  as  the 
Lord  Chief  Baron.  The  case  is,  no  doubt,  one  of  some  hardship  to 
the  plaintiffs,  for  they  have  unquestionably  lost  a  large  sum  in  con- 
sequence of  the  non-performance  by  the  defendants  of  their  contract. 
But  upon  the  best  consideration  I  have  been  able  to  give  to  the  case, 
and  looking  to  what  is  on  the  whole  the  best  general  rule  to  lay  down 
in  such  cases,  I  am  of  opinion  that  the  plaintiffs  are  not  entitled  to 
recover  the  extraordinary  damages  which  they  claim.  It  appears  to 
me  that  one  mode  of  testing  the  amount  of  the  defendants'  liability 
would  be  this  :  Suppose  the  goods,  instead  of  merely  being  delayed 
in  delivery,  had  been  burnt  while  in  defendants'  custody.  Would 
the  plaintiffs  have  been  entitled  to  recover  for  them  at  the  rate  of 
4.9.  a  pair,  or  only  their  value  at  the  time  when  they  were  burnt  (  It 
strikes  me  that  they  could  only  recover  their  value  when  burnt,  and 
not  their  value  calculated  according  to  the  price  at  which  they  were 
sold  some  time  before,  when  the  market  was  higher.  The  case  of 
France  v.  Gaudet  (Law  Rep.  G  Q.  B.  190),  which  was  cited  in  argu- 
ment, was  between  vendor  and  purchaser,  and,  it  appears  to  me,  in- 
volved different  considerations.     I  think  these  questions  of  damages 


204  CARRIERS. 

must  necessarily  be  considered  very  much  upon  the  particular  cir- 
cumstances of  each  individual  case.  With  regard  to  the  present  case 
another  test  may  be  suggested.  If  some  other  person  had  delivered 
a  similar  quantity  of  shoes  to  the  defendants,  for  carriage  on  the 
same  day  as  the  plaintiffs,  not  being  under  contract  to  deliver  them, 
it  is  admitted  he  could  only  recover  201.  How  can  it  be,  in  the  ab- 
sence of  an  express  contract  to  that  effect,  that  by  reason  of  a  mere 
communication  to  the  defendants  that  the  goods  would  be  thrown  on 
the  plaintiffs'  hands  if  not  delivered  in  time,  so  widely  different  a 
liability  can  arise  upon  contracts  for  which  the  amount  of  the  con- 
sideration was  the  same,  and  in  all  other  respects  precisely  similar  ? 
There  is  also  another  consideration  which  arises  with  respect  to  the 
case  of  a  carrier,  such  as  this  is,  showing  the  great  importance  of,  as 
far  as  possible,  keeping  to  a  uniform  rule  with  regard  to  damages  in 
such  cases.  If  such  a  notice  as  this  were  to  be  held  sufficient  to  im- 
pose this  exceptional  liability  on  carriers,  they  would  be  laid  open  to 
imposition  without  end.  There  would  be  constant  attempts  to  set 
up  against  them  special  circumstances,  of  which  they  would  be  al- 
leged to  have  had  notice,  to  enhance  the  damages.  It  seems  to  me 
that  it  would  be  very  dangerous  to  impose  any  liability  on  a  carrier 
to  damages  beyond  the  ordinary  and  natural  consequences  of  his 
breach  of  duty,  in  the  absence  of  something  equivalent  to  a  contract 
on  his  part  to  be  liable  to  such  damages. 

Blackburn,  J. — I  am  also  of  opinion  that  the  judgment  should 
be  affirmed.  Various  questions  have  arisen  in  the  course  of  the  case 
as  to  which  it  is  not  necessary  to  come  to  any  absolute  decision  ;  and 
I  do  not  wish,  sitting  in  a  court  of  error,  in  any  opinion  I  may  ex- 
press upon  such  questions,  to  be  taken  to  have  given  any  absolute 
decision  upon  them.  No  doubt,  prima  facie,  the  damages  which 
actually  result  from  a  breach  of  contract  are  recoverable,  provided 
that  they  are  such  as  may  fairly  and  reasonably  be  considered  as 
arising  directly  and  naturally,  that  is  to  say,  in  the  ordinary  course 
of  things,  from  such  breach  of  contract.  The  amount  of  them  may 
be  unexpectedly  large,  but  still  the  defendants  must  pay.  If  a  man 
contracts  to  carry  a  chattel  and  loses  it,  he  must  pay  the  value, 
though  he  may  discover  that  it  was  more  valuable  than  he  had  sup- 
posed. But  when  the  damages  sought  to  be  recovered  are  not  those 
which  in  the  ordinary  course  of  things  would  naturally  arise,  but  are 
of  an  exceptional  nature,  arising  from  special  and  peculiar  circum- 
stances, it  is  clear  that  in  the  absence  of  any  notice  to  the  defendant 
of  any  such  circumstances,  such  damages  cannot  be  recovered.  It  is 
said  that  there  was  a  notice  in  the  present  case.      Here  arises,  with 


HORNE   v.    MIDLAND  RAILWAY  CO.  205 

relation  to  the  doctrine  of  notice,  one  of  those  questions  to  which  I 
have  adverted,  and  on  which  in  what  I  may  now  say  I  do  not  wish 
to  be  considered  as  expressing  a  final  opinion.  It  is  clear  that  if  the 
notice  be  such,  and  given  under  such  circumstances,  as  to  amount  to 
evidence  of  an  actual  contract  to  bear  the  exceptional  loss  arising 
from  the  breach  of  contract,  then  such  contract,  if  found  to  exist, 
would  be  binding ;  but  here,  as  it  seems  to  me,  it  is  quite  clear  that 
there  was  no  such  special  contract.  The  plaintiffs  delivered  the 
goods  to  the  superintendent  at  the  railway  station,  to  be  earned  by 
the  railway  in  time  to  be  delivered  by  the  company  on  the  3d  of 
February,  and  gave  him  notice  of  the  fact  that  if  they  did  not  arrive 
by  that  date  loss  would  be  occasioned  to  them.  The  company  would 
be  bound  to  deliver  in  a  reasonable  time,  and  this  notice  would 
amount  to  a  notice  to  the  company  that  the  reasonable  time  within 
which  they  would  then  be  expected  to  deliver,  under  the  circum- 
stances of  the  case,  was  by  the  3d  of  February  ;  but  I  cannot  see 
how  it  would  alter  the  ordinary  contract  of  the  company  into  a  con- 
tract to  deliver  by  the  3d  of  February,  or  to  pay  Is.  3d.  damages 
per  pair  for  the  shoes.  I  doubt  whether  it  would  have  been  within 
the  authority  of  the  station  master  to  make  any  such  contract.  Then 
if  there  was  no  special  contract,  what  was  the  effect  of  the  notice  ? 
In  the  case  of  Hadley  v.  Baxendale  (9  Ex.  341 ;  23  L.  J.  Ex.  179),  it 
was  intimated  that,  apart  from  all  question  of  a  special  contract  with 
regard  to  amount  of  damages,  if  there  were  a  special  notice  of  the 
circumstances  the  plaintiff  might  recover  the  exceptional  damages. 
This  doctrine  has  been  adverted  to  in  several  subsequent  decisions 
with  more  or  less  assent,  but  they  appear  to  have  all  been  cases  in 
which  it  was  held  that  the  doctrine  did  not  apply  because  there  was 
no  special  notice.  It  does  not  appear  that  there  has  been  any  case 
in  which  it  has  been  affirmatively  held  that  in  consequence  of  such  a 
notice  the  plaintiff  could  recover  exceptional  damages.  The  counsel 
for  the  plaintiffs  could  not  refer  to  any  such  case,  and  I  know  of 
none.  If  it  were  necessary  to  decide  the  point,  I  should  be  much 
disposed  to  agree  with  what  my  brother  Martest  has  suggested,  viz., 
that  in  order  that  the  notice  may  have  any  effect,  it  must  be  given 
under  such  circumstances  as  that  an  actual  contract  arises  on  the  part 
of  the  defendant  to  bear  the  exceptional  loss.  Before,  however,  de- 
ciding the  point,  I  should  have  wished  to  take  time  to  consider ;  but 
it  is  not  necessary  to  do  so,  for  even  assuming  that  the  law  is  the 
contrary  of  that  which  I  incline  to  think  it  to  be,  to  my  mind  it  is 
clear  that  there  was  no  such  notice  in  the  present  case  as  to  raise  the 
question.     There  was,  no  doubt,  a  full  intimation  to  the  defendants 


206  CARRIERS. 

that  the  time  by  which  the  goods  were  delivered  was  of  consequence, 
that  the  reasonable  time  which  the  company  had  to  deliver  in  must 
not  be  protracted  beyond  the  3d  of  February,  and  I  think  it  may 
fairly  be  said  that  there  was  an  intimation  to  the  defendants  that  the 
contract  under  which  the  plaintiffs  had  to  deliver  was  a  profitable 
one  ;  but  I  cannot  see,  giving  the  notice  its  widest  construction,  that 
it  amounted  to  a  notice  that  the  plaintiffs  would  suffer  such  an  ex- 
ceptional loss  as  they  did  by  non-delivery  of  the  shoes.  So  that  I 
think  it  is  not  necessary  to  decide  whether  the  dictum  in  Hadley  v. 
Baxendale  (9  Ex.  341  ;  23  L.  J.  Ex.  179),  is  well  founded,  though 
I  do  not  wish  to  disguise  my  present  impressions  on  the  subject. 

Mellok,  J. — I  am  of  the  same  opinion.  The  contract  entered 
into  with  the  railway  company  by  the  plaintiffs  was,  as  it  appears  to 
me,  of  the  ordinary  character,  and  there  was  a  notice  given  that  the 
goods  were  to  be  delivered  by  the  3d  of  February,  or  they  would 
be  thrown  on  the  consignors'  hands.  It  does  not  seem  to  me  that 
this  notice,  giving  it  its  utmost  effect,  brings  the  case  within  the  dic- 
tum in  Hadley  v.  Baxendale  {supra).  It  was  a  notice,  no  doubt,  that 
it  was  important  that  the  goods  should  be  delivered  by  the  3d  of 
February,  but  it  was  no  notice  of  the  exceptional  circumstances  of 
the  case,  and  the  exceptional  price  which  was  to  be  given  for  the 
shoes.  There  was,  it  is  true,  a  notice  that  the  consignor  was  under 
contract  to  deliver  the  shoes,  but  nothing  was  told  to  the  carrier  as 
to  the  special  nature  of  the  contract.  Under  these  circumstances  it 
appears  to  me  all  that  we  can  look  to  in  estimating  the  damages  is 
the  market  price  when  the  shoes  were  delivered  to  the  carrier,  and 
the  time  when  the  contract  was  broken.  What  we  are  told  as  to 
that  is,  that  in  consequence  of  the  cessation  of  the  war  between 
France  and  Prussia,  Hickson  &  Sons,  except  for  the  circumstance 
that  they  had  the  contract  in  question  with  the  French  house,  could 
not  have  sold  the  goods  at  any  better  price  than  that  actually  ob- 
tained, if  they  had  received  them  on  the  evening  of  the  3d  of  Feb- 
ruary instead  of  the  morning  of  the  4th.  Under  these  circumstances, 
it  seems  to  me,  we  must  infer  that  the  market  value  was  the  same 
on  the  3d  as  on  the  4th,  and  so  no  special  damages  are  recovera- 
ble. The  sum  of  201.,  therefore,  which  was  paid  into  court,  was 
amply  sufficient. 

Pigott,  B. — I  regret  to  be  obliged  to  differ  from  the  opinions  ex- 
pressed by  my  Lord  Chief  Baron  and  my  brothers  Martin,  Black- 
burn and  Mellor.  I  think  the  plaintiffs  are  entitled  to  recover  the 
damages  which  they  claim.  The  question  which  we  have  to  decide 
is,  upon  what  principle  damages  are  to  be  assessed  for  breach  of  a 


HORNE   y.    MIDLAND  RAILWAY  CO.  207 

contract  to  carry  and  deliver,  entered  into  by  a  railway  company 
with  a  special  notice  to  them  of  the  consequences  of  breach  of  con- 
tract on  their  part.  I  agree  that  if  the  company  are  to  be  liable  for 
extraordinary  damages  by  reason  of  the  notice  given  to  them,  it  must 
be  because  they  are  at  liberty  to  decline  to  carry  the  goods  at  an  ex- 
traordinary risk,  unless  it  be  that  they  have  a  rig] it  to  charge  an  ex- 
traordinary rate  of  carriage  in  consideration  of  incurring  such  risk. 
The  company  cannot,  I  should  suppose,  as  carriers,  go  beyond  the 
highest  rate  permitted  by  their  acts  of  Parliament  in  any  case,  and 
probably  that  rate  would  not  be  an  adequate  remuneration  to  cover 
the  increased  risk.  The  alternative  is,  that  they  may  decline  to  carry 
goods  which  are  not  tendered  to  them  for  carriage  upon  the  ordinary 
liability  of  common  carriers,  unless  the  consignors  will  enter  into  a 
special  contract  in  relation  to  such  goods.  It  follows,  to  my  mind, 
that  if  they  do  not  refuse  the  goods,  or  make  any  special  stipulations 
with  regard  to  them,  but  accept  the  goods  with  notice  of  what  the 
consequences  will  be  if  they  are  not  delivered  by  a  certain  time  with- 
out objection,  there  is  evidence  from  which  we  may  infer  that  they 
have  contracted  on  the  special  terms  that  they  will  be  liable  for  those 
consequences.  The  whole  case,  therefore,  seems  to  me  to  resolve  it- 
self into  the  question,  what  was  the  contract  between  these  parties  ? 
The  notice  given  by  the  plaintiffs  is  to  the  effect  that  they  are  under 
contract  to  deliver  the  goods  on  the  3d  of  February,  and  that  if 
they  do  not  deliver  by  that  time,  the  goods  will  be  thrown  on  their 
hands.  It  seems  to  me  this  notice  imports  that  the  contract  under 
which  the  plaintiffs  were  bound  to  deliver,  was  a  valuable  contract 
to  them,  by  performance  of  which  they  would  reap  profits,  and  by 
breach  of  which  they  would  sustain  loss.  The  defendants  receive 
the  goods  under  this  notice,  and  they  do  break  their  contract,  and  the 
plaintiffs,  as  a  consequence  of  such  breach,  incur  loss  to  the  extent 
of  1*.  3d.  per  pair  upon  the  shoes.  Such  loss  being  actually  the  re- 
sult of  the  defendants'  breach  of  contract,  why  are  the  plaintiffs  not 
to  recover  it  ?  It  can  only  be  by  reason  of  some  artificial  rule  estab- 
lished by  the  decisions,  or  some  ground  of  public  policy,  that  makes 
the  measure  of  the  damages  which  may  be  recovered  less  than  that 
which  is  actually  sustained.  I  agree  that  the  true  rule  is  that  which 
has  been  laid  down,  viz.,  that  the  damages  must  be  such  as  naturally, 
i.  e.  in  the  ordinary  course  of  things,  flow  from  the  breach,  or  such 
as  may  reasonably  be  supposed  to  have  been  in  the  contemplation  of 
the  parties.  Why  are  not  the  damages  in  this  case  of  the  latter 
character  ?  It  does  not  seem  to  me  to  be  shown  that  there  was  any- 
thing exceptional  in  the  nature  of  the  contract  entered  into  for  sale 


208  CARRIERS. 

of  the  shoes.  There  was  nothing  exceptional  in  the  price  that  I  can 
see.  The  price  was  not  greater  than  would  have  been  given  at  the 
time  the  contract  was  made  to  any  other  person  than  the  plaintiffs. 
It  was  the  ordinary  price  which  would  have  been  paid  at  that  time  by 
reason  of  the  circumstance  that  shoes  were  then  in  great  demand  in 
consequence  of  the  French  war.  When  the  time  came  for  delivery 
the  price  had  fallen  to  2s.  9d.,  because  the  war  was  about  to  cease 
and  the  demand  was  smaller.  What  is  there  more  in  this  than  that 
the  market  had  fluctuated  and  fallen  between  the  time  when  the 
contract  was  made  and  the  time  for  delivery  %  It  is  said  that  the 
defendants  would  not  contemplate  so  large  a  loss  from  the  notice 
that  they  received.  If  this  notice  be  not  sufficient,  it  must  be  neces- 
sary in  such  a  case  to  communicate  the  exact  details  of  the  contract. 
I  cannot  think  this  is  so.  If  the  carrier  is  told  that  the  consignor  is 
under  contract  to  deliver  by  a  certain  day,  or  else  he  will  lose  the 
benefit  of  the  contract,  and  accepts  the  goods  without  further  in- 
quiry, does  he  not  take  the  risk  of  what  the  loss  on  the  contract  may 
turn  out  to  be  ?  The  consignor  has  put  him  on  his  guard,  and  if  he 
omits  to  inquire  further,  he  has  only  himself  to  blame.  I  agree  with 
my  brother  Martin,  that  these  cases  as  to  damages  must  necessarily 
often  stand  very  much  on  their  individual  circumstances,  but  it 
seems  to  me  that  the  present  case  is  within  the  doctrine  laid  down 
in  Hadley  v.  Baxendale  (9  Ex.  341 ;  23  L.  J.  Ex.  179),  and  the  cases 
that  have  followed  it,  and  that  these  damages  are  such  as  may  rea- 
sonably be  considered  as  having  been  within  the  contemplation  of 
the  parties  at  the  time  they  made  the  contract,  as  the  probable  result 
of  a  breach  of  it.  I  therefore  think  the  judgment  of  the  court  below 
should  be  reversed. 

Lush,  J. — I  also  think  the  judgment  of  the  court  below  should 
be  reversed.  I  agree  that  the  liability  of  the  carrier,  under  ordinary 
circumstances,  is  to  pay  such  damages  as  are  the  natural  and  ordi- 
nary consequences  of  the  breach  of  his  contract,  or  such  as  may  be 
reasonably  supposed  to  have  been  in  the  contemplation  of  the  par- 
ties. I  think  that  the  duty  of  the  carrier  is  co-extensive  with  such 
liability.  He  is  not  at  liberty  to  refuse  to  carry,  on  the  ordinary 
terms,  but  if  it  is  sought  to  impose  upon  him  a  liability  of  an  extraor- 
dinary nature,  arising  out  of  peculiar  circumstances,  then  I  think  he 
is  entitled  to  decline  to  carry,  unless  he  be  paid  a  higher  rate  of  car- 
riage. Though  there  is  no  decision  to  that  effect,  the  conclusion 
seems  to  me  plainly  deducible  from  the  judgment  in  Riley  v.  Home 
(5  Bing.  217),  which  was  a  considered  judgment  of  the  Court  of 
Common  Pleas,  delivered  by  Best,  C.  J.     The  law  is  thus  laid  down 


HORNE   v.   MIDLAND  RAILWAY  CO.  209 

at  p.  220  of  the  report :  "  As  the  law  makes  the  carrier  an  insurer, 
and  as  the  goods  he  carries  may  be  injured  or  destroyed  by  many 
accidents  against  which  no  care  on  the  part  of  the  carrier  can  pro- 
tect them,  he  is  as  much  entitled  to  be  paid  a  premium  for  his  insur- 
ance of  their  delivery  at  the  place  of  destination  as  for  the  labor  and 
expense  of  carrying  them  there.  Indeed,  besides  the  risk  that  he 
runs,  his  attention  becomes  more  anxious  and  his  journey  is  more 
expensive  in  proportion  to  the  value  of  his  load.  If  he  has  things 
of  great  value  contained  in  such  small  packages  as  to  be  objects  of 
theft  or  embezzlement,  a  stronger  and  more  vigilant  guard  is  required 
than  when  he  carries  articles  not  easily  removed,  and  which  offer  less 
temptation  to  dishonesty." 

It  appears  to  me  plainly  to  follow  from  this  exposition  of  the 
law  that  if  it  is  sought  to  fix  a  carrier  with  any  extraordinary  liabil- 
ity he  may  decline  to  carry  unless  a  higher  rate  of  remuneration  be 
paid  to  him.  It  seems  to  have  been  accepted  as  the  law  from  the 
case  of  Hadley  v.  Baxendale  (9  Ex.  341 ;  23  L.  J.  Ex.  179)  down- 
wards, that  where  notice  is  given  to  the  carrier  of  the  special  circum- 
stances, and  he  consents  nevertheless  to  carry  the  goods  without  ob- 
jection, he  may  be  liable  for  the  extraordinary  damages  arising  out 
of  such  circumstances.  I  agree,  however,  with  the  suggestion  that 
the  notice  in  such  cases  can  have  no  effect  except  so  far  as  it  leads  to 
the  inference  that  a  term  has  been  imported  into  the  contract  making 
the  defendant  liable  for  the  extraordinary  damages.  As  Willes,  J.,, 
says  in  British  Columbia  Saw  Mill  Co.  v.  Nettleship  (Law  Rep.  3  C. 
P.  499,  509),  "  the  knowledge  must  be  brought  home  to  the  party 
sought  to  be  charged,  under  such  circumstances  that  he  must  know 
that  the  person  he  contracts  with  reasonably  believes  that  he  accepts 
the  contract  with  the  special  condition  attached  to  it."  I  think  if 
the  person  delivering  the  shoes  had  said  to  the  station  master,  that 
he  was  under  contract  to  deliver  the  shoes  by  the  3d  of  February, 
and  would  gain  so  much  if  he  performed  his  contract,  and  lose  so 
much  if  he  did  not,  and  the  station  master  had  without  objection 
consented  to  receive  the  shoes,  the  company  would  have  been  lia- 
ble. ~No  question  is  now  raised  as  to  the  authority  of  the  station 
master,  and  it  must  therefore  be  taken  that  for  this  purpose  he 
represents  the  company.  I  have  no  doubt  that  what  did  pass  on 
the  delivery  of  the  goods  was  equivalent  to  a  distinct  acceptance  of 
the  shoes  by  the  company  to  be  carried  on  the  terms  that  the  com- 
pany were  to  be  liable  for  the  consequent  loss  to  the  plaintiffs  if 
the  shoes  were  not  delivered. 

To  my  mind  the  statement  made  to  the  station  master  must 
14 


210  CARRIERS. 

have  conveyed  to  his  mind  the  impression  that  the  plaintiffs  were 
under  a  profitable  contract  to  deliver  the  shoes  by  the  3d  of  Februa- 
ry, and  would  lose  the  benefit  of  such  contract  if  the  shoes  were  not 
so  delivered.  It  was  not  specified  how  much  the  plaintiffs  would 
lose,  but  I  do  not  think  that  was  necessary.  The  rule  seems  to  apply 
which  was  laid  down  by  Best,  0.  J.,  in  Eiley  v.  Home  (5  Bing.  21T), 
to  the  effect  that  if  the  carrier  choose  to  make  no  inquiry  as  to  the 
nature  of  the  goods,  he  is  responsible  to  the  full  value  in  case  of 
loss,  and  cannot  afterwards  complain  that  he  was  not  informed  of 
such  value.  It  seems  to  me  by  analogy,  that  the  intimation  here 
given  to  the  station  master  was  sufficient  to  throw  upon  him  the 
duty  of  inquiring  what  the  consequences  would  be  if  the  shoes  were 
not  delivered,  and  if  he  did  not  do  so,  but  received  the  goods  with- 
out objection,  the  company  is  in  the  same  position  as  if  the  whole 
details  of  the  contract  were  communicated  to  them. 

Cleasby,  B. — I  agree  with  the  conclusion  arrived  at  by  the  Lord 
Chief  Baron  and  those  members  of  the  court  who  concurred  with 
him.  I  offer  no  opinion  on  the  question  how  far  a  notice  might  be 
sufficient  to  fix  the  defendants  with  exceptional  damages,  considered 
merely  as  a  notice,  and  not  as  amounting  to  evidence  of  a  contract  to 
be  liable  for  such  damages,  though  I  do  not  wish  to  be  understood 
as  differing  from  the  opinion  expressed  by  Willes,  J.,  in  the  British 
Columbia  Saw  Mills  Co.  v.  Nettleship  (Law  Kep.  3  C.  P.  509)  on 
that  point ;  nor  do  I  express  any  opinion  on  the  question  how  far  a 
railway  company  may  be  placed  in  a  different  position  from  any 
other  persons  in  such  a  case  as  the  present.  The  safest  course  in 
this  case  appears  to  me  to  be  to  affirm  the  decision  of  the  court  be- 
low on  the  ground  on  which  it  was  given,  if  that  ground  was  suffi- 
cient. I  rest  my  judgment  on  the  ground  that,  even  if  a  mere  notice 
could  be  sufficient,  the  notice  here  is  not  of  such  a  nature  as  to  affect 
the  defendants  with  knowledge  of  the  exceptional  terms  of  the 
plaintiffs'  contract  for  the  supply  of  the  shoes.  The  case  states  that 
the  plaintiffs  were  under  contract  for  sale  of  the  shoes,  but  it  does 
not  say  when  such  contract  was  made  ;  but  as  it  is  stated  to  have 
been  subsisting  in  January,  it  was  probably  made  some  time  before. 
It  appears  that  if  the  shoes  were  not  delivered  by  the  3d  of  Febru- 
ary, the  purchasers  were  entitled  to  refuse  to  accept  them,  so  that 
the  last  day  for  delivering  under  the  contract,  must  have  been  the 
3d  of  February ;  but  it  does  not  appear  that  they  might  not  have 
been  delivered  before.  So  that  it  comes  to  this :  that  the  plaintiffs 
are  really  seeking  to  make  the  defendants  responsible  for  loss  which 
was  in  great  measure  caused  by  their  driving  off  delivery  to  the  last 


BAXENDALE   v.    LONDON,  CHATHAM  AND  DOVER  RAILWAY  CO.      211 

day  on  which  it  could  be  made  under  the  contract.  I  must  say  I 
think  the  materials  on  which  they  seek  to  do  so  are  wholly  insuffi- 
cient. No  intimation  was  given  to  the  defendants  as  to  the  peculiar 
nature  of  the  contract,  or  the  exceptional  price  at  which  the  shoes 
were  sold,  so  as  to  give  them  any  opportunity  of  contracting  with 
reference  to  the  precise  liability  which  they  were  to  incur.  The 
only  way  in  which  the  case  can  be  put  on  behalf  of  the  plaintiffs,  is 
the  way  in  which  it  was  put  by  my  brother  Lush,  namely,  that 
enough  was  said  to  put  the  defendants  on  inquiry  as  to  the  details 
of  the  contract,  and  that  by  not  inquiring  they  dispensed  with  any 
further  notice  as  to  its  terms.  I  cannot  agree  in  that  view  of  the 
case.  I  should  hesitate  to  regard  the  station  master  as  a  person  in- 
trusted with  a  discretion  as  to  making  such  inquiries,  though  I  do 
not  base  my  judgment  on  that  ground.  I  do  not  think  enough  was 
told  to  the  station  master  to  put  him  on  inquiry.  There  was 
nothing  to  indicate  to  him  the  probability  of  the  contract  being 
of  so  exceptional  a  character,  and  the  consequences  of  breaking  it  so 
unusually  large. 

Judgment  affirmed. 


Eemote  Damages  ;  Proximate  Cause  ;  Costs  of  Litigation  ;  Sepa- 
rate Contracts. 


[1874.]      BAXENDALB   V.    LONDON,    CHATHAM  AND   DOVER   EAIL- 

way  Co.  (L.  E.  10  Exch.  35). 

H.  having  contracted  with  the  plaintiffs,  who  were  carriers,  for  the  carriage  of  two  pic- 
tures from  London  to  Paris,  the  plaintiffs  contracted  with  the  defendants  for  the 
carriage  by  the  defendants  of  the  pictures  over  a  part  of  the  distance.  The  pictures 
were  damaged  on  the  journey  by  the  defendants'  negligence.  H.  thereupon  brought 
an  action  against  the  plaintiffs,  who  gave  notice  of  it  to  the  defendants,  and  re- 
quested them  to  defend  it.  The  defendants  refused,  and  told  the  plaintiffs  to  take 
their  own  course.  The  plaintiffs  defended  the  action  brought  against  them  by  II. 
without  success,  and  then  brought  an  action  against  the  defendants  to  recover  not 
only  the  damages  found  by  the  jury  to  have  been  sustained  by  H.,  but  also  the  costs 
of  the  unsuccessful  defense.  The  defendants  paid  the  damages  into  court,  and  dis- 
puted their  liability  as  to  the  costs  : 

Held  (reversing  the  judgment  of  the  court  below),  that  the  costs  were  not  recoverable, 
inasmuch  as  they  could  not  be  considered  as  the  natural  consequence  of  the  defend- 
ants' default,  the  contracts  between  H.  and  the  plaintiffs,  and  between  the  plaintiffs 
and  the  defendants  having  been  separate  and  independent.  Mors  le  Blanch  v.  Wilson 
(Law  Rep.  8  C.  P.  227,  Lush,  J.,  dissenting)  disapproved. 


212  CARRIERS. 

Appeal  from  a  decision  of  the  Court  of  Exchequer,  discharging 
a  rule  to  enter  a  verdict  for  the  defendants. 

The  facts  of  the  case  are  as  follows :  On  the  6th  of  October, 
1871,  Robert  Harding  delivered  to  the  plaintiffs,  who  are  carriers 
and  forwarding  agents,  a  case  containing  two  pictures  for  transmis- 
sion to  Paris ;  and  at  the  same  time  his  agents  filled  up  and  signed 
a  foreign  declaration  and  consignment  note,  in  which  the  value  of 
the  pictures  was  stated  to  be  1,000^.  On  the  same  day,  the  plaintiffs 
delivered  the  case  to  the  defendants  to  be  forwarded  to  their  agents 
at  Calais.  A  consignment  note  was  signed  by  the  plaintiffs,  describ- 
ing the  goods  as  "  one  case  pictures,  value  1,000Z."  This  consign- 
ment note  was  subject  to  various  conditions,  exempting  the  defend- 
ants from  liability  in  certain  contingencies,  which  however  did  not 
happen.  The  case  was  forwarded  by  the  defendants,  and  reached 
Dover  safely,  but  in  course  of  shipment  was,  through  the  negli- 
gence of  their  servants,  dropped  into  the  sea,  and  the  pictures  were 
damaged  by  sea  water.  The  defendants  having  informed  the 
plaintiffs  of  the  accident,  the  plaintiffs,  on  the  11th  of  October, 
wrote  them  as  follows  :  "  The  senders  of  the  goods  have  been  to 
examine  them,  and  state  that  the  pictures  are  utterly  spoiled,  and 
the  amount  given  in  the  declaration  does  not  near  cover  the  value 
thereof,  and  a  claim  will  be  made.  We  are  afraid  you  are  not,  under 
the  circumstances,  protected  by  the  carriers  act  for  the  damage 
done,  and  we  shall  be  glad  to  know  if  you  will  accept  the  claim,  or 
what  you  intend  doing  in  the  matter."  The  defendants,  on  the  24th, 
replied,  declining  all  liability.  On  the  28th  of  November,  Harding 
made  a  claim  of  1,000£.  on  the  plaintiffs,  who  refused  to  entertain  it, 
on  the  ground  that  the  pictures  had  not  been  insured  in  accordance 
with  the  carriers  act.  He  thereupon  commenced  an  action  against 
them,  and  they  wrote  to  the  defendants  on  the  12th  of  December, 
informing  them  of  the  fact  in  these  terms:  "A  writ  has  now  been 
issued  :  will  you  kindly  inform  us  whether  you  will  defend  by  your 
own  solicitors,  or  if  you  wish  us  to  do  so  on  your  account  %  It  would 
be  a  great  mistake  to  have  two  actions :  one  against  us  and  then 
another  against  you."  Not  having  received  any  answer,  on  the  15th 
of  December  the  plaintiffs  again  wrote,  "requesting  instructions," 
and  on  the  same  day  the  defendants'  attorney  wrote  :  "  I  am  unable 
to  give  you  any  instructions,  but  must  leave  you  to  deal  with  the 
case  as  you  think  fit.  I  am  not  aware  whether,  when  the  case 
of  pictures  was  delivered  to  you  for  carriage,  a  declaration  was 
made  and  insurance  paid.  This  company  received  it  only  as  an  ordi- 
nary parcel."     On  the  8th  of  January,  1872,  declaration  was  deliv- 


BAXENDALE   v.   LONDON,  CHATHAM  AND  DOVER  RAILWAY  CO.      213 

ered  in  Harding  v.  Baxendale  and  others,  and  on  the  13th  of  Janu- 
ary the  plaintiffs  forwarded  a  copy  of  it  to  the  defendants'  attorney, 
again  requesting  the  defendants  to  undertake  the  defense,  or,  if  not, 
to  make  any  suggestion  as  to  the  defense  which  should  be  raised. 
They  added,  "  The  defendants  will  hold  your  clients  responsible  for 
the  damages  which  the  plaintiff  may  be  held  entitled  to  recover,  as 
well  as  for  the  costs  which  the  defendants  may  incur  to  the  plaintiff 
and  to  their  own  solicitor  in  defending  the  action."  The  defendants' 
attorney  replied  on  the  16th  of  January,  declining  to  offer  any  sug- 
gestions as  to  the  defense  of  the  action. 

The  plaintiffs  continued  to  defend  the  action,  although  they 
received,  whilst  it  was  still  pending,  an  opinion  from  their  counsel 
that  the  carriers  act  afforded  no  defense,  and  that  they  would  not 
be  successful. 

They  pleaded  the  general  issue,  liberty  being  given  them  by  a 
consent  order  to  raise,  under  this  plea,  the  defense  that  they  had 
received  the  goods  as  mere  forwarding  agents,  and  also  that  they 
were  protected  by  the  carriers  act. 

A  part  of  the  expenses  incurred  related  to  special  defenses  set 
up  by  them,  and  the  remainder  to  the  value  of  the  pictures.  Upon 
receiving  notice  of  trial  they  again  communicated  with  the  defend- 
ants, who  however  continued  to  decline  to  make  any  suggestion  as 
to  the  defense.  The  plaintiffs  having  delivered  their  briefs  were 
again  advised  that  the  carriers  act  afforded  no  defense.  They 
wrote  on  the  19th  of  June,  1872,  to  inform  the  defendants  of  the 
unfavorable  opinion  they  had  received,  and  asked  whether  they 
should  endeavor  to  settle  the  action.  The  defendants'  attorney 
replied,  "I  cannot,  under  the  circumstances  of  the  case,  take  any 
course  implying  assent  on  the  part  of  the  company  to  the  settlement 
of  the  action,  as  they  are  prepared  to  defend  any  proceedings  against 
them  on  the  question  of  legal  liability." 

The  cause  of  Harding  v.  Baxendale  and  others  was  tried  in 
November,  1872,  and  resulted  in  a  verdict  for  the  plaintiff  for  650/. 
The  plaintiff's  costs  were  taxed  at  248/.  13s.  4^7.,  which,  with  the 
damages,  the  plaintiffs  paid  to  Harding.  The  plaintiffs'  own  costs 
amounted  to  260/.  4s.  The  present  action  was  brought  to  recover 
from  the  defendants  650/.  and  the  costs  incurred  by  the  plaintiffs  in 
the  defense  of  the  former  action.  The  defendants  paid  650/.  into 
court,  and  denied  liability  as  to  the  costs. 

The  cause  was  tried  at  the  Surrey  spring  assizes,  1873,  before 
Cockburn,  C.  J.,  when  the  above  facts  were  admitted,  and  a  verdict 
entered  for  the  plaintiffs  for  the  amount  of  the  two  bills  of  costs  in 


214  CARRIERS. 

addition  to  the  650£.,  with  leave  to  move  to  enter  a  verdict  for  the 
defendants,  or  to  reduce  the  damages  to  an  amount  to  be  settled  by 
the  master.     A  rule  was  afterwards  obtained  accordingly. 

June  27.  The  judgment  of  the  court  (Bkamwell  and  Cleasby, 
BB.),  was  delivered  by 

Cleasby,  B. — This  was  one  of  those  cases  in  which  a  person 
incurs  a  responsibility  in  consequence  of  the  neglect  or  default  of 
another  in  some  duty  owing  to  him,  and  a  question  of  some  diffi- 
culty arises  in  it  as  to  how  far  he  can  make  that  other  responsible 
for  costs  he  has  incurred  in  defending  an  action  brought  against  him. 

It  appears  that  the  plaintiffs  had  received  from  Harding  two 
pictures  to  be  forwarded  to  Paris.  They  delivered  them  to  the 
defendants,  by  whose  negligence  the  pictures  fell  into  the  water  and 
were  damaged.  A  claim  was  then  made  against  the  plaintiffs  by 
Harding,  and  an  action  brought  by  him  against  them.  Now,  in  the 
first  instance,  the  plaintiffs  could  obtain  very  little  information  to 
guide  them,  either  in  defending  the  action  or  in  settling  it.  They 
could  not  pay  money  into  court,  for  the  damage  done  by  the  water 
to  the  pictures  was  difficult  to  ascertain  without  a  regular  inquiry 
by  persons  competent  to  deal  with  the  matter.  Having  regard  to 
the  nature  of  the  claim,  we  certainly  think  they  could  not  be  ex- 
pected either  to  settle  the  claim  before  action  or  to  pay  money  into 
court ;  and  we  think  it  was  the  necessary  consequence  of  the  de- 
fendants' neglect  that  the  plaintiffs  should  be  put  to  the  expense  of 
ascertaining  in  a  proper  way  the  amount  of  their  liability  to  Hard- 
ing, in  order  that  they  might  recover  over  against  the  defendants. 
So  far,  therefore,  as  regards  the  part  of  the  rule  which  asks  that  the 
verdict  should  be  entered  for  the  defendants,  we  think  it  should  be 
discharged.;  for  clearly  the  plaintiffs  were  entitled  to  some  costs. 

Then  the  question  arises  whether  this  was  a  case  in  which  the 
plaintiffs  acted  fairly  and  reasonably  in  defending  to  the  end  the 
action  brought  against  them  by  Harding ;  and  in  considering  this 
question  we  think  we  ought  to  abide  by  the  rule  laid  down,  or 
rather,  I  should  say,  acted  upon,  in  Mors  le  Blanch  v.  Wilson  (Law 
Rep.  8  C.  P.  227),  according  to  which  a  jury  are  to  give  such  costs 
as  were  reasonably  incurred  by  the  plaintiffs  in  the  action  brought 
against  them,  either  in  defending  the  action  or  otherwise  ascertain- 
ing the  amount  of  liability.  I  have  already  called  attention  to  the 
nature  of  the  case ;  I  will  proceed  to  consider  the  conduct  of  the 
present  defendants  in  reference  to  the  claim.  As  soon  as  it  was 
made  the  now  plaintiffs  wrote  to  the  defendants  giving  them  notice, 
and  asking  for  their  advice  and  assistance.     A  long  correspondence 


BAXENDALE   v.   LONDON,  CHATHAM  AND  DOVER  RAILWAY  CO.      215 

ensued,  and  eventually  the  defendants  declined  all  liability  in  the 
matter,  and  left  the  plaintiffs  to  take  their  own  course.  Still  the 
plaintiffs  continue  to  urge  the  defendants  to  do  something,  and  on 
the  12th  of  December  write :  "  A  writ  has  now  been  issued.  Will 
you  kindly  inform  us  whether  you  will  defend  by  your  own  soli- 
citor, or  if  you  wish  us  to  do  so  on  your  account  ?  It  would  be  a 
great  mistake  to  have  two  actions — one  against  us,  and  then  another 
against  you."  Unfortunately  this  is  what  has  taken  place,  but  cer- 
tainly through  no  fault  of  the  plaintiffs.  The  defendants  continued 
to  keep  them  at  arm's  length,  and  insisted  that,  if  necessary,  they 
would  avail  themselves  of  the  protection  of  the  carriers  act.  The 
result  is,  that  the  plaintiffs  did  all  they  could  to  prevent  two  sets  of 
costs  from  arising ;  and  it  appears  to  us  that  the  fault  having  been 
that  of  the  company,  they  might  fairly  and  properly  have  taken  on 
themselves  the  defense  of  the  action  brought  by  Harding.  Instead 
of  doing  so,  they  left  the  plaintiffs  to  make  the  best  of  the  case  they 
could. 

Under  these  circumstances,  the  result  is  that  the  plaintiffs  are 
entitled  to  recover  from  the  defendants  all  costs  incurred  in  having 
the  amount  of  their  liability  ascertained,  and  also  all  costs  attributa- 
ble to  the  defense  raised  under  the  carriers  act.  They  are  not  en- 
titled to  the  costs  of  any  defense  peculiar  to  themselves — such  as 
that  they  were  mere  forwarding  agents  and  not  carriers.  It  is  true 
that  we  think  the  defense,  under  the  carriers  act,  could  not  be  suc- 
cessfully set  up ;  but  still  we  are  of  opinion  that  it  was  quite  justifi- 
able on  the  plaintiffs'  part,  not  only  to  have  the  amount  of  liability 
established  by  a  jury,  but  also  to  put  forward  the  carriers  act  as  a 
ground  of  defense,  as  the  defendants  to  the  last  insisted  upon  it. 
We  cannot  deal  with  the  figures,  but  with  the  guide  we  have  given, 
the  parties  ought  to  be  able  easily  to  settle  the  amount. 

Rule  discharged. 

From  this  decision  the  defendants  appealed. 

Lord  Coleridge,  C.  J. — In  this  case  a  claim  is  made  against  the 
defendants  for  the  costs  incurred  by  the  plaintiffs  of  an  unsuccessful 
defense  offered  by  them  to  an  action  brought  against  them  by  one 
Harding.  It  appears  that  the  plaintiffs  contracted  with  Harding  to 
send  two  pictures  for  him  from  London  to  Paris  ;  and  that  after- 
wards, by  a  separate  and  independent  contract,  the  defendants  agreed 
with  the  plaintiffs  to  carry  the  pictures.  In  the  course  of  the  transit, 
through  the  defendants'  negligence,  the  pictures  fell  into  the  sea  and 
were  damaged.  Harding  thereupon  brought  an  action  against  the 
plaintiffs,  who  took  legal  advice,  and  were  told,  and  rightly  told, 


216  CARRIERS. 

that  they  had  no  defense.  The  plaintiffs  communicated  this  fact  to 
the  defendants,  and  a  long  correspondence  ensued,  the  substance  of 
which  was  that  the  defendants  said  to  the  plaintiffs,  "  Take  your  own 
course  in  Harding's  action.  We  will  have  nothing  to  do  with  it. 
When  the  time  comes  for  you  to  attack  us  we  shall  defend  ourselves."' 
The  plaintiffs,  however,  persisted  in  defending  Harding's  action,  and 
it  went  to  trial.  The  plaintiffs  were  defeated,  and  then  commenced 
this  action,  in  which  they  sought  to  recover  from  the  defendants,  not 
only  the  damages  assessed  by  the  jury  as  the  value  of  the  pictures, 
but  also  the  costs  of  their  unsuccessful  defense.  The  defendants 
paid  the  damages  for  the  injury  to  the  pictures  into  court,  and 
denied  any  further  liability.  The  Court  of  Exchequer  have  decided, 
upon  the  authority  of  Mors  le  Blanch  v.  Wilson  (Law  Rep.  8  C.  P. 
227),  that  they  are  liable  to  those  costs,  or,  at  all  events,  to  so  much 
of  them  as  were  incurred  by  the  plaintiffs  in  ascertaining  the  amount 
of  their  liability  to  Harding,  and  in  relation  to  the  defense  of  the 
carriers  act.  I  am  of  opinion  that  this  decision  is  erroneous.  The 
defense  was  not,  in  my  judgment,  a  reasonable  defense.  It  was  with- 
out any  foundation  in  law,  and  there  was  no  authority  from  the 
defendants,  either  express  or  implied,  to  set  it  up. 

This,  however,  does  not  dispose  of  the  whole  of  the  plaintiffs' 
claim.  For  it  may  be  said,  "  True,  the  defense  was  ill-advised  and 
unauthorized ;  still  the  plaintiffs  were  obliged  to  do  something  to 
ascertain  their  liability,  and  they  at  least  are  entitled  to  such  an 
amount  of  costs  as  they  would  have  incurred  had  they  allowed  judg- 
ment to  go  by  default,  upon  a  writ  of  inquiry."  But  I  think  this 
contention  fails  also,  because  it  seems  to  me  that  the  whole  of  the 
costs  were  incurred  for  the  plaintiffs'  own  benefit,  and  were  not  in 
any  sense  the  natural  and  proximate  result  of  the  defendants'  breach 
of  duty.  The  judgment,  therefore,  must  be  reversed.  It  appears  to 
have  proceeded  wholly  upon  the  case  of  Mors  le  Blanch  v.  Wilson 
(Law  Rep.  8  C.  P.  227),  which  is  certainly  very  like  this  case,  and 
which,  if  necessary,  should  in  my  opinion  be  overruled. 

Keating,  J. — I  am  of  the  same  opinion.  I  think  the  damages 
here  sought  to  be  recovered  are  too  remote.  The  contract  between 
Harding  and  the  plaintiffs  is  wholly  separate  from  that  between  the 
plaintiffs  and  defendants,  and  any  costs  incurred  by  the  plaintiffs  in 
defending  an  action  by  Harding  on  his  contract  cannot  be  regarded 
as  the  natural  and  proximate  result  of  the  defendants'  breach  of 
duty.  A  different  question  might  have  arisen  supposing  the  defend- 
ants had  requested  the  plaintiffs  -to  defend,  for  in  that  case  these 
costs  might,  according  to  the  principles  which  govern  actions  for 


BAXENDALE   v.    LONDON,  CHATHAM  AND  DOVER  RAILWAY  CO.      217 

money  paid,  and  which  will  be  found  in  the  note  to  Lampleigh  v. 
Brathwait  (1  Sm.  L.  C.  6th  ed.  at  p.  142),  have  been  recovered  as 
money  paid  by  the  plaintiffs  for  the  defendants  at  their  request. 

If  the  question  here  were  whether  the  defense  was  reasonable  or 
not,  I  must  say  that  I  think  it  was  entirely  unreasonable.  But  this 
would  not  dispose  of  the  whole  claim.  For  it  might  be  asked,  what 
were  the  plaintiffs  to  do  ?  It  has  been  suggested  that  they  should 
have  let  judgment  go  by  default,  but  that  would  touch  the  question 
of  amount  only,  not  of  liability. 

In  Mors  le  Blanch  v.  Wilson  (Law  Rep.  8  C.  P.  22T)  it  was  left 
to  the  jury  in  a  very  similar  case  to  the  present  to  say  whether  the 
plaintiff  had  adopted  a  reasonable  course  or  not  in  defending  an  ac- 
tion for  damage  brought  against  him.  I  believe  that  in  the  opinion 
of  my  brother  Lush  that  case  is  distinguishable  from  this  one ;  but  I 
feel  great  difficulty  myself  in  seeing  any  distinction.  I  think,  there- 
fore, that  in  the  court  below  Mr.  Williams  had  a  right  to  rely  upon 
that  case  as  authoritative,  but  I  confess  that  the  decision  does  not 
appear  to  me  to  be  satisfactory.  The  ground  of  my  present  decision 
is,  that  the  costs  claimed  are  not  the  proximate  consequence  of  the 
defendants'  breach  of  duty. 

Lush,  J. — I  am  of  the  same  opinion ;  and  my  judgment  proceeds 
upon  the  ground  that  the  costs  claimed  are  not  the  natural  conse- 
quence of  the  defendants'  breach  of  contract,  nor  were  they  incurred 
at  their  request  or  for  their  benefit.  There  were  two  separate  con- 
tracts ;  one  between  Harding  and  the  plaintiffs,  and  the  other  be- 
tween the  plaintiffs  and  the  defendants.  The  defendants  knew  of 
no  one  but  the  plaintiffs  in  the  matter ;  and  it  might  well  have  been 
that  the  plaintiffs  were  liable  to  Harding  on  their  contract,  and  yet 
that  the  defendants  were  not  liable  to  the  plaintiffs  on  theirs,  or 
vice  versa.  Upon  the  action  by  Harding  being  commenced,  the 
plaintiffs  informed  the  defendants,  who,  on  the  15th  of  December, 
replied  that  they  were  protected  by  the  carriers  act,  and  that  they 
would  have  nothing  to  do  with  the  defense  of  the  action.  This 
position  they  continued  to  maintain.  The  plaintiffs  nevertheless 
defended  Harding's  action,  but  without  success,  and  now  claim  their 
costs  from  the  defendants  as  well  as  the  damages  (G501.)  which  they 
had  to  pay  Harding. 

Now  it  should  be  observed,  that  the  plaintiffs  might  have  sued 
the  defendants  at  once,  when  the  measure  of  the  defendants'  lia- 
bility would  have  been  the  injury  to  the  pictures.  The  defendants' 
neglect  was  in  not  carrying  the  goods  safely,  and  the  plaintiffs, 
though  themselves  protected  by  their  contract  with  Harding,  might 


218  CARRIERS. 

still  have  recovered  against  them.  This,  then,  is  not,  as  the  court 
below  appears  to  have  thought,  a  case  "  in  which  a  person  incurs  a 
liability  in  consequence  of  the  neglect  or  default  of  another  in  some 
duty  owing  to  him."  The  defendants  incurred  no  liability  to  Hard- 
ing, and  their  liability  to  the  plaintiffs  was  quite  apart  from  any  lia- 
bility of  the  plaintiffs  to  Harding.  The  costs  of  defending  Hard- 
ing's action  therefore  cannot  be  said  to  be  the  consequence  of  the 
defendants'  default.  The  two  things  have  no  connection  whatever 
with  each  other. 

But  the  court  below  also  place  their  judgment  upon  the  ground 
that  it  was  reasonable  that  the  plaintiffs  should  have  the  damages 
assessed  in  Harding's  action.  It  may  have  been  reasonable  for  their 
own  benefit ;  but  as  the  defendants  could  not  be  bound  by  the  assess- 
ment, I  do  not  see  how  it  could  be  for  theirs. 

Again,  we  have  been  pressed  with  the  difficulty  in  which  the 
plaintiffs  were  placed ;  but  as  to  that  the  difficulty  arises  from  the 
nature  and  magnitude  of  their  business,  and  ought  not  to  influence 
our  decision  upon  the  question  before  us.  It  remains  to  add  a  few 
words  with  regard  to  Mors  le  Blanch  v.  Wilson  (Law  Kep.  8  C.  P. 
227),  upon  which  it  appears  that  the  court  below  acted.  In  my 
opinion  there  is  no  analogy  between  the  two  cases.  In  that  case  the 
amount  of  demurrage  ascertained  in  the  first  action  would  neces- 
sarily be  the  measure  of  damages  in  the  second  ;  and,  moreover, 
there  the  jury  expressly  found  that  the  plaintiff  had  adopted  a  rea- 
sonable course  in  defending  the  first  action.  I  think,  therefore,  that 
our  decision  in  this  case  is  not  really  in  conflict  with  that  of  the 
Court  of  Common  Pleas. 

Quain,  J. — If  this  were  a  contract  of  indemnity,  where  although 
there  may  be  two  contracts  in  form  there  is  only  one  in  substance, 
our  decision  might  be  in  favor  of  the  plaintiffs.  In  such  a  case,  a 
surety  who  is  called  upon  to  pay  the  debt  due  or  duty  owing  from 
the  principal  may  well  be  justified  in  defending  an  action  at  the 
principal's  expense.  The  cases  which  have  been  referred  to,  with 
one  exception,  are  all  cases  of  indemnity,  and  really  have  no  appli- 
cation here.  For  we  have  to  deal  with  two  separate  and  independ- 
ent contracts,  and  it  would,  it  seems  to  me,  be  very  unreasonable  to 
hold  that  the  plaintiffs  should  be  able  to  charge  the  defendants 
against  their  will  and  without  their  sanction  with  the  costs  of  an 
action  brought  upon  a  contract  made  by  the  plaintiffs  with  Harding, 
to  which  the  defendants  were  no  parties,  and  with  which  they  had 
no  concern  whatever. 

This  case,  then,  is  not  one  of  principal  and  surety ;  and  the  only 


BAXENDALE   v.   LONDON,  CHATHAM  AND   DOVER  RAILWAY  CO.     219 

ground  on  which  the  plaintiffs  can  recover  these  costs  is,  that  the 
costs  are  the  natural  and  reasonable  consequence  of  the  defendants' 
breach  of  contract,  and  therefore  within  the  well-known  rule  laid 
down  in  Hadley  v.  Baxendale  (9  Ex.  341 ;  22  L.  J.  Ex.  179).  But 
I  am  clearly  of  opinion  that  they  cannot  be  so  considered.  If  the 
defendants  had  chosen  to  undertake  the  defense,  then  do  doubt  an 
action  for  money  paid  would  have  been  maintainable  upon  the  prin- 
ciple of  the  cases  cited  in  the  note  to  Lampleigh  v.  Brathwait  (1  Sm. 
L.  C.  6th  ed.  at  p.  142).  But  the  evidence  here  is  that  from  first  to 
last  the  defendants  refused  to  have  anything  to  do  with  Harding's 
action. 

With  regard  to  Mors  le  Blanch  v.  Wilson  (Law  Kep.  8  C.  P.  227> 
that  is,  I  think,  an  authority  for  the  plaintiffs.  I  am  unable  to  dis- 
tinguish it  from  this  case.  There,  as  here,  there  were  two  separate 
and  independent  contracts ;  and  I  do  not  think,  with  deference  to 
my  brother  Lush,  that  the  assessment  of  damages  against  Mors  le 
Blanch  was  conclusive  in  his  action  against  Wilson.  But  sitting 
here  we  are  not  bound  by  that  case,  which  appears  to  have  pro- 
ceeded upon  a  mere  dictum  of  Parke,  B.,  in  Tindal  v.  Bell  (11  M.  & 
W.  at  p.  231).  I  agree  with  my  lord  and  my  brother  Keating  in 
thinking  it  wrongly  decided. 

Archibald,  J. — I  am  of  the  same  opinion.  These  costs  cannot 
be  claimed  by  reason  of  the  defendants  having  given  any  actual 
authority  to  incur  them.  Nor  were  the  plaintiffs  compelled  to  incur 
them  by  reason  of  the  defendants'  default.  In  other  words,  they 
were  not  the  natural  and  necessary  consequence  of  that  default. 
The  contracts  were  wholly  independent,  and  the  damages  recovered 
against  the  plaintiffs  by  Harding  were  not  of  necessity  the  same  as 
those  which  the  plaintiffs  could  recover  against  the  defendants.  The 
assessment  in  the  first  action  could  not  in  any  shape  be  conclusive 
against  the  defendants. 

With  regard  to  Mors  le  Blanch  v.  Wilson  (Law  Kep.  8  C.  P.  227), 
I  cannot  see  any  distinction  between  it  and  the  present  case.  My 
brother  Lush  has  pointed  out  what  he  considers  to  be  a  distinction ; 
but  I  cannot  see  why,  in  that  case,  the  damages  assessed  against 
Mors  le  Blanch  furnished  a  conclusive  test  of  those  which  he  could 
recover  against  Wilson.  There,  as  here,  the  contracts  were  separate 
and  independent,  and  Mors  le  Blanch  might  have  sued  Wilson  before 
he  had  been  sued  himself,  and  so  have  settled  the  question  of  demur- 
rage, just  as  here  the  plaintiffs  might  at  once  have  sued  the  defend- 
ants.    If,  therefore,  it  be  necessary  to  pronounce  an  opinion  as  to 


220  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

Mors  le  Blanch  v.  Wilson  (Law  Eep.  8  C.  P.  227),  I  should  hold  it 
open  to  the  same  objection  as  the  decision  of  the  court  below  in  this 
case. 

Judgment  reversed. 

Note. — See  the  recent  case  of  Fisher  v.  Val  de  Travers  Asphalte  Co.  L.  R.  1 
C.  P.  D.  511,  which  follows  the  foregoing  case. 


CONTRACTS   FOR  SALE   AND   OTHER 
AGREEMENTS. 

Contract  of  Sale  ;   Damages  fob  non-delivery  of  Merchandise  ; 

Market  Yalue. 


[1851.]  Dana  v.  Fiedler  (12  K  Y.  40 ;  affirming  1  E.  D.  S.  4G3). 

In  an  action  on  a  contract  to  recover  damages  for  the  non-delivery  of  goods,  the  plaintiff 
is  entitled  to  the  difference  between  the  market  value  of  the  article  contracted  for 
on  the  day  when  it  should  have  been  delivered,  and  the  price  which  he  agreed  to 
pay  for  it.  To  the  amount  thus  ascertained  interest  should  be  added  as  matter  of 
law. 

An  investigation  of  the  actual  condition  of  the  market  is  required :  a  hypothetical  value, 
supposed  by  the  jury  to  be  the  probable  result  of  throwing  on  the  market  the  supply 
of  the  article  provided  for  by  the  contract,  cannot  be  substituted  for  such  actual 
market  value. 

Where  the  action  was  for  the  non-delivery  of  150  casks  of  madder,  an  inquiry  as  to  the 
market  value  of  madder  in  a  quantity  not  less  than  150  casks,  on  the  day  stipulated 
for  its  delivery,  without  its  being  shown  that  there  was  a  market  value  for  the  article 
in  such  quantities,  was  held  to  be  properly  rejected. 

So  a  question  as  to  the  difference  between  the  price  of  madder  on  sales  as  large  as  150 
tons,  and  on  sales  of  two,  three,  and  five  tons,  in  the  absence  of  facts  warranting  the 
supposition  that  the  plaintiffs  could  have  procured  the  quantity  which  the  defendant 
had  agreed  to  deliver  them  by  a  single  purchase,  was  not  proper. 

Where  no  sales  were  shown  on  the  day  stipulated  for  the  delivery,  a  reasonable  range  in 
the  inquiry  as  to  the  market  value  before  and  after  that  day,  the  extent  of  which 
is  to  be  determined  by  the  court,  was  held  allowable.  But  where  the  stipulated  day 
was  the  first  of  April,  and  sales  were  shown  on  the  10th  and  15th  of  that  month,  no 
legitimate  inference  as  to  the  market  value  prior  to  those  sales  could  be  drawn  from 
a  subsequent  alteration  in  the  price.  An  inquiry  therefore  as  to  the  range  of  the 
market  for  three  months  before  and  after  the  day  when  the  delivery  was  due,  was 
too  broad,  and  was  properly  excluded. 


DANA  v.   FIEDLER.  221 

This  was  an  action  to  recover  damages  for  the  non-delivery  of 
one  hundred  and  fifty  casks  of  madder  of  one  ton  each,  pursuant  to 
the  following  contract : 

"  New  York,  October  23d,  1849. 

"  Bought  of  Ernest  Fiedler,  Esq.,  account  of  William  P.  Dana, 
for  Fearing  &  Hall's  acceptance,  one  hundred  and  fifty  casks  '  of 
one  ton  each '  best  EXFF  madder,  12  1-4,  6  ms.  The  agreement  is, 
that  it  shall  all  be  delivered  on  or  before  the  first  day  of  April  next, 
dangers  of  the  sea  excepted.  The  quality  to  be  approved  by  me. 
"  By  your  obedient  servant, 

"Randall  H.  Greene,  Broker,  &c." 

Across  the  face  of  this  instrument  the  words,  "  I  agree  to  this 
contract "  were  written  in  the  defendant's  handwriting,  and  signed 
by  him. 

The  plaintiffs  proved  the  demand  on  the  1st  of  April,  1850,  of 
the  madder  stipulated  in  the  contract,  their  tender  of  Fearing  & 
Hall's  acceptance  as  agreed,  and  the  defendant's  refusal  to  deliver 
the  madder. 

A  dealer  in  madder  called  by  the  plaintiffs  as  a  witness  testified 
that  he  sold  no  madder  on  April  1,  1850 ;  that  he  sold  some  on  the 
15th  of  that  month  for  15  cents  a  pound,  and  that  he  thought  that 
15£  cents  per  pound  was  the  fair  market  value  of  the  best  EXFF 
madder  on  April  1,  1850.  On  cross-examination  he  said  there  was 
but  a  small  quantity  of  madder  in  the  market  on  that  day. 

On  the  cross-examination  of  witnesses  called  by  the  plaintiffs  to 
prove  the  value  of  madder  on  April  1,  1850,  the  following  questions 
asked  by  the  defendant's  counsel,  and  having  reference,  as  he  stated, 
to  the  amount  of  the  plaintiffs'  damages,  were  excluded  by  the  pre- 
siding judge,  and  the  exclusion  was  excepted  to  by  the  defendant's 
counsel :  "  What  would  have  been  the  effect  of  an  additional  supply 
of  madder  to  the  extent  of  150  casks  in  the  market  on  the  1st  of 
April,  1850,  in  the  market  value  or  supposed  market  value  of  the 
article  ?  In  reference  to  the  ordinary  supply  in  the  market,  is  or  is 
not  150  tons  an  unusually  large  supply  ?  Would  or  would  not  150 
tons  constitute  a  large  supply  for  the  New  York  market  at  any  one 
time  ?  What  kind  of  a  stock,  as  regards  a  usual  or  ordinary  quan- 
tity for  a  single  printing  works,  would  the  quantity  of  150  tons  be  ? 
What  kind  of  a  stock  would  150  tons  be  in  reference  to  supplying 
the  usual  demand  of  the  New  York  market  ? " 

The  defendant's  counsel  asked  one  of  his  witnesses  the  following 
question  :  "  What  was  the  market  value  of  the  best  French  madder 
EXFF,  for  a  quantity  as  large  as  150  casks  on  the  first  of  April, 


222  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

1S50  ?"  The  plaintiffs'  counsel  objecting  to  the  words  "for  a  quan- 
tity as  large  as  150  casks,"  the  presiding  judge  held  that  the  inquiry 
as  put  might  be  answered,  if  it  were  shown  that  there  was  a  market 
value  for  the  article  in  such  quantities,  saying  that  the  question  was 
what  it  would  have  cost  the  plaintiffs  to  buy  the  quantity  on  the  day 
named,  not  what  it  could  have  been  sold  for  by  the  defendant.  To 
this  ruling  the  defendant's  counsel  excepted. 

The  witness  then  testified  that  he  did  not  believe  that  so  much 
as  150  tons  could  have  been  sold  in  the  market  in  one  day,  and  that 
there  was  a  difference  in  the  price  of  the  article  when  sold  in  small 
quantities  and  in  lots  as  large  as  150  tons. 

The  defendant's  counsel  then  asked,  "  What  is  the  usual  differ- 
ence in  the  price  of  madder  on  sales  of  quantities  as  large  as  150 
tons,  and  sales  of  two,  three,  or  five  tons  ? "  The  plaintiffs'  counsel 
objected  to  the  question ;  the  objection  was  sustained,  and  the  de- 
fendant's counsel  excepted  to  the  decision. 

The  witness  further  testified  that  the  market  price  of  madder  on 
the  1st  day  of  April,  1850,  at  wholesale  for  cash,  was  from  13£  to  14 
cents  a  pound.  The  defendant's  counsel  then  asked,  the  witness  in 
what  quantities  at  a  single  sale  would  13£  to  14  cents  have  been  the 
fair  market  value  on  that  day.  This  was  excluded  on  the  plaintiffs' 
objection,  and  the  defendant  excepted. 

One  of  the  plaintiffs'  witnesses,  who  was  a  dealer  in  madder,  hav- 
ing testified  that  he  did  not  know  the  price  of  the  article  on  the  1st 
of  April,  1850  ;  that  sales  were  made  about  the  middle  of  April  at 
15£  cents  a  pound,  but  that  he  did  not  know  that  the  price  had  risen 
from  April  1st  to  April  15th,  the  defendant's  counsel  asked,  him  this 
question  :  "  What  was  the  market  value  of  madder  for  a  period  of 
three  months  before  and  after  the  1st  of  April,  1850?"  On  the 
objection  of  the  plaintiff's  counsel  the  question  was  excluded,  and 
the  defendant's  counsel  excepted. 

The  presiding  judge  charged  the  jury  that  the  rule  of  damages 
was  the  difference  between  the  market  value  of  the  article  contracted 
for  on  the  day  when  it  should  have  been  delivered,  and  the  price 
which  Dana  agreed  to  pay  for  it.  That  in  ascertaining  this  differ- 
ence, they  should  take  into  view  the  fact  that  the  purchase  was  at 
six  months,  and  that  the  most  of  the  prices  testified  to,  were  prices 
of  the  article  on  a  credit  for  the  periods  named  by  the  witnesses. 
Having,  by  the  proper  allowances  for  credit,  ascertained  such  differ- 
ence of  value,  the  plaintiffs,  if  they  recovered,  were  entitled  to  in- 
terest thereon  from  the  maturity  of  their  contract. 

The  defendant's  counsel  excepted  to  so  much  of  the  charge  as 
allowed  interest  on  the  difference  in  value. 


DANA   v.   FIEDLER.  223 

The  jury  found  a  verdict  for  the  plaintiffs  for  $9,750  difference  in 
value,  with  interest  thereon  for  seven  months  and  a  half. 

On  appeal  from  the  judgment  entered  on  the  verdict  the  general 
term  of  the  Court  of  Common  Pleas  held  that  there  was  error  in  the 
charge  as  to  interest,  and  that  the  jury  should  have  been  instructed 
to  allow  interest  or  not,  in  their  discretion,  but  allowed  the  judg- 
ment to  stand  for  the  amount  of  damages  and  costs  on  condition  that 
the  plaintiffs  remitted  the  interest,  which  they  did. 

The  defendant  thereupon  appealed  to  the  Court  of  Appeals  of 
the  State  of  New  York. 

Johnson,  J.,  after  deciding  a  question  of  evidence,  proceeded  as 
follows :— The  next  question  to  be  considered  relates  to  the  exclusion 
of  questions  offered  to  be  put  by  the  defendant  as  bearing  upon  the 
measure  of  damages.  The  rule  of  damages  laid  down  in  the  charge 
was,  that  the  plaintiffs  were  entitled  to  the  difference  between  the 
market  value  of  the  article  contracted  for,  on  the  day  it  should  have 
been  delivered,  and  the  price  which  the  plaintiffs  agreed  to  pay  for 
it.  To  this  there  was  no  exception,  and  it  is  now  not  affirmed  to  be 
incorrect. 

The  questions  excluded  were  put  in  various  forms,  but  their 
admissibility  is  urged  upon  the  ground  that,  in  ascertaining  the  mar- 
ket value  of  the  madder,  the  jury  were  to  consider  how  the  plaintiffs 
could  have  disposed  of  the  madder  in  question  if  it  had  been  deliv- 
ered to  them.  Accordingly,  inquiries  were  made  as  to  the  probable 
effect  on  the  market  price  of  an  additional  supply  of  150  casks  - 
whether  a  quantity  of  150  tons  was  not  a  large  supply  to  the  market ; 
in  reference  to  the  amount  ordinarily  in  market ;  and  whether  the 
same  quantity  would  not  be  a  very  large  supply  for  a  single  printing 
works.  The  evident  object  of  all  these  inquiries  was  to  show  that, 
if  the  defendant  had  performed,  and  the  plaintiffs  had  desired  to 
sell  the  whole  quantity,  the  market  price  would  have  been  lowered 
by  throwing  so  large  a  quantity  at  once  upon  the  market.  A  suffi- 
cient answer  to  all  these  exceptions  is,  that  they  are  founded  upon 
an  attempt  to  substitute  a  hypothetical  market  value  for  the  actual 
market  value.  They  call  upon  the  jury  to  speculate  as  to  the  conse- 
quences which  would  have  resulted  to  the  plaintiffs  if  the  defendant 
had  performed  his  contract.  The  rule  of  damages  was  correctly  laid 
down  by  the  court  (Clark  v.  Pinney,  7  Cow.  681 ;  Dey  v.  Dox,  9 
Wend.  129  ;  Davis  v.  Shields,  21  Wend.  322) ;  and  the  market  value 
of  the  article  on  the  day  of  delivery,  which  that  rule  fixes  as  the  test, 
requires  an  investigation  of  the  actual  condition  of  the  market,  and 
does  not  warrant  the  consideration  of  the  conjectural  consequences 
of  a  state  of  things  which  did  not  exist. 


224      CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

The  principle  on  which  the  rule  rests  is  the  indemnification  of 
the  injured  party  for  the  injury  which  he  has  sustained.  In  a  suit 
by  the  vendor  against  the  vendee  for  non-acceptance  of  the  articles 
sold,  in  order  to  give  him  a  complete  indemnity,  he  must  recover 
the  difference  between  the  agreed  price  and  that  at  which  he  could 
sell  on  the  day  when  the  vendee  was  bound  to  receive  and  pay  for 
the  thing  bought.  So,  on  the  other  hand,  in  a  suit  by  the  vendee 
against  the  vendor  for  non-delivery,  his  complete  indemnity  is  to 
receive  that  sum  which,  with  the  price  he  had  agreed  to  pay,  would 
enable  him  to  buy  the  article  which  the  vendor  had  failed  to  deliver. 
The  value  in  the  market  on  the  day  forms  the  readiest  and  most 
direct  method  of  ascertaining  the  measure  of  this  indemnity  in  both 
cases,  and  accordingly,  where  a  market  value  for  the  article  exists, 
the  law  has  adopted  that  standard. 

Some  other  rulings  of  the  court,  in  respect  to  the  rejection  of 
questions  put  by  the  defendant's  counsel,  are  to  be  considered.  The 
first  was  an  inquiry  as  to  the  market  value  of  madder  on  the  day 
when,  by  the  contract,  it  should  have  been  delivered,  in  as  large  a 
quantity  as  150  casks.  This  inquiry  was  rejected,  unless  it  was  first 
shown  that  there  was  a  market  value  for  the  article  in  such  quanti- 
ties. The  limitation  thus  imposed  by  the  court  was  correct,  for 
otherwise  the  question  only  called  upon  the  witness  to  speculate 
upon  the  probable  consequences  of  attempting  to  buy  or  sell  such  a 
quantity  upon  the  day  when  the  delivery  ought  to  have  been  made. 
If  admitted,  it  would  have  brought  to  the  consideration  of  the  jury 
the  same  question  we  have  already  concluded  they  were  not  to  pass 
upon.  It  moreover  called  for  no  matter  of  fact  within  his  knowl- 
edge, but  only  for  his  judgment  upon  a  question  as  to  which,  if  a 
judgment  was  necessary  to  be  formed  by  anybody,  the  jury  were  the 
proper  tribunal  and  were  competent  to  form  it.  Another  question 
alluded  to  was  asked  in  these  terms :  "  What  is  the  difference  in  the 
price  of  madder  on  sales  as  large  as  150  tons,  and  sales  of  two,  three 
or  five  tons  ? "  This  question  called  upon  the  witness  for  some  aver- 
age estimate  to  be  formed  by  him  as  to  the  difference  in  price  spoken 
of,  and  not  for  facts  lying  within  his  knowledge,  and  was  on  that 
account  properly  excluded.  ISTor  do  I  think  it  was  proper,  by  way 
of  founding  an  argument  upon  the  answer  sought  for,  that  the 
plaintiffs  should  be  limited  to  such  a  price  as  could  be  procured  for 
the  whole  quantity  of  150  tons  in  a  single  sale.  No  facts  were  in 
evidence  to  warrant  the  supposition  that  the  plaintiffs  could  have 
procured  the  quantity  which  the  defendant  had  agreed  to  deliver  to 
them,  by  a  single  purchase.     In  the  absence  of  such  facts,  at  least, 


DANA   v.   FIEDLER.  225 

the  inquiry  was  in  that  aspect  irrelevant.  In  every  other  aspect  it 
only  presented  the  same  question  which,  upon  this  branch  of  the 
case,  was  first  considered.  Another  question  arises  upon  the  exclu- 
sion of  an  inquiry  by  the  defendant's  counsel  as  to  the  range  of  the 
market  value  of  madder,  for  a  period  of  three  months  before  and 
after  the  day  when  the  delivery  was  due.  As  no  sales  were  shown 
on  the  precise  day,  it  was  necessary  to  have  recourse  to  sales  before 
and  after  the  day,  and  for  that  inquiry  a  reasonable  range  in  point  of 
time  was  allowable  ;  but,  in  some  degree,  the  extent  of  time  which 
shall  be  included  in  such  an  inquiry  must  rest  in  the  discretion  of 
the  court  which  tries  the  cause.  Sales  were  shown  in  this  case  on 
the  10th  and  15th  of  April.  From  a  subsequent  alteration  in  the 
price,  no  legitimate  inference  could  be  drawn  as  to  the  market  value 
prior  to  those  sales  ;  and  the  question  put  was  too  broad  in  its  terms, 
and  embraced  too  great  a  period  of  time,  to  entitle  the  defendant  to 
insist,  as  matter  of  right,  upon  its  being  allowed  to  be  put. 

Another  ground  of  objection  to  the  judgment  is,  that  the  general 
term  of  the  Common  Pleas,  having  decided  that  the  judge  at  the  trial 
erred  in  instructing  the  jury  that  interest  was  to  be  recovered  as 
part  of  the  damages  upon  the  amount  of  difference  between  the  con- 
tract price  and  the  market  value,  did  not  grant  a  new  trial  absolutely, 
but  only  in  the  event  that  the  plaintiffs  should  refuse  to  strike  out 
the  amount  of  interest  which  had  been  separately  assessed  by  the 
jury,  and  in  case  of  their  consent,  denied  a  new  trial  and  awarded 
costs  to  them. 

I  think  the  decision  at  the  trial  was  correct  upon  principle.  In- 
terest is  a  necessary  item  in  the  estimate  of  damages  in  this  class  of 
cases.  The  party  is  entitled  on  the  day  of  performance  to  the  prop- 
erty agreed  to  be  delivered  ;  if  it  is  not  delivered,  the  law  gives,  as 
the  measure  of  compensation  then  due,  the  difference  between  the 
contract  and  market  prices.  If  he  is  not  also  entitled  to  interest 
from  that  time  as  matter  of  law,  this  contradictory  result  follows, 
that  while  an  indemnity  is  professedly  given,  the  law  adopts  such  a 
mode  of  ascertaining  its  amount,  that  the  longer  a  party  is  delayed 
in  obtaining  it,  the  greater  shall  its  inadequacy  become.  It  is  how- 
ever conceded  to  be  law,  that  in  these  cases  the  jury  may  give  inter- 
est by  way  of  damages,  in  their  discretion.  jSTow,  in  all  cases,  unless 
this  be  an  exception,  the  measure  of  damages  in  an  action  upon  a 
contract  relating  to  money  or  property  is  a  question  of  law,  and  does 
not  at  all  rest  in  the  discretion  of  the  jury.  If  the  giving  or  refus- 
ing interest  rests  in  discretion,  the  law,  to  be  consistent,  should  fur- 
nish some  legitimate  means  of  influencing  its  exercise  by  evidence, 
15 


226  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

as  by  showing  that  the  party  in  fault  has  failed  to  perform,  either 
willfully  or  by  mere  accident,  and  without  any  moral  misconduct. 
All  such  considerations  are  constantly  excluded  from  a  jury,  and 
they  are  properly  told  that  in  such  an  action  their  duty  is  to  inquire 
whether  a  breach  of  the  contract  has  happened,  not  what  motives 
induced  the  breach. 

That  by  law  a  j>arty  is  to  have  the  difference  between  the  con- 
tract price  and  the  market  price,  in  order  that  he  may  be  indemni- 
fied, and  because  that  rule  affords  the  measure  of  his  injury  when  it 
occurred ;  that  he  may  not  as  matter  of  law  recover  interest,  which 
is  necessary  to  a  complete  indemnity ;  that  nevertheless  the  jury 
may,  in  their  discretion,  give  him  a  complete  indemnity,  by  includ- 
ing the  amount  of  interest  in  their  estimate  of  his  damages  ;  but 
that  he  may  not  give  any  evidence  to  influence  their  discretion,  pre- 
sents a  series  of  propositions,  some  of  which  cannot  be  law.  The 
case  of  Tan  Kensselaer  v.  Jewett  (2  N.  Y.  141)  establishes  a  prin- 
ciple broad  enough  to  include  this  case,  and  has  freed  the  law  from 
this  as  well  as  other  apparent  inconsistencies  in  which  it  was  sup- 
posed to  have  become  involved.  The  right  to  interest,  in  actions 
upon  contract,  depends  not  upon  discretion  but  upon  legal  right,  and 
in  actions  like  the  present  is  as  much  a  part  of  the  indemnity  to 
which  the  party  is  entitled  as  the  difference  between  the  market 
value  and  the  contract  price.  If,  therefore,  the  general  term  com- 
mitted any  error,  it  is  not  one  of  which  the  defendant  can  complain, 
as  it  was  in  his  favor,  and  deprived  the  plaintiffs  of  part  of  the  relief 
to  which  they  were  by  law  entitled. 

The  judgment  should  be  affirmed. 


Breach  of  Parol  Contract  to  Cultivate  Farm  ;  Profits  ;  Bad 

Faith. 


SUPREME    COURT,    PENNSYLVANIA. 

[1859.]  Hoy  v.  Gronoble  (34  Perm.  St.  9). 

In  an  action  to  recover  damages  for  the  breach  of  a  parol  contract,  by  which  the  defend- 
ant engaged  to  employ  the  plaintiff  to  cultivate  a  farm  upon  shares,  the  proper 
measure  of  damages  is  the  profit  which  the  plaintiff  would  have  made  on  the  farm, 
if  the  contract  had  not  been  violated. 

But  the  plaintiff  cannot,  in  addition,  recover  damages  for  the  violation  of  faith  on  the 
part  of  the  defendant. 


HOY  v.   GRONOBLE.  227 

Error  to  the  Common  Pleas  of  Centre  county. 

This  was  an  action  of  assumpsit  by  Philip  Gronoble  against 
John  Hoy,  to  recover  damages  for  the  breach  of  a  parol  contract, 
whereby  the  defendant  engaged  to  employ  the  plaintiff  to  cultivate 
a  farm  upon  shares. 

On  the  trial,  the  court  below  (Buknside,  P.  J.)  instructed  the 
jury,  that  if  they  found  there  was  a  breach  of  contract  on  the  part 
of  the  defendant,  the  plaintiff's  damages  were  to  be  measured  by 
what  he  could  have  made  on  the  farm  ;  and  that,  in  addition,  they 
might  allow  him  damages  for  violation  of  faith. 

To  this  charge  the  defendant  excepted  ;  and  a  verdict  and  judg- 
ment having  been  rendered  for  the  plaintiff  for  $250,  the  defend- 
ant removed  the  cause  to  this  court,  and  here  assigned  the  same 
for  error. 

The  opinion  of  the  court  was  delivered  by 

Strong,  J. — The  plaintiff  below  brought  suit  to  recover  damages 
for  a  breach  of  a  parol  contract,  by  which  the  defendant  engaged  to 
employ  him  to  cultivate  a  farm  upon  shares.  The  only  questions 
raised  in  this  court  relate  to  the  proper  measure  of  damages.  The 
plaintiff  having,  through  the  alleged  default  of  the  defendant,  failed 
in  obtaining  the  employment,  the  learned  judge  of  the  Common 
Pleas  instructed  the  jury  that  his  damages  were  to  be  measured  by 
what  he  could  have  made  on  the  farm,  and  that  besides  these,  they 
might  allow  him  damages  for  violation  of  faith.  This  instruction,  it 
is  contended,  was  erroneous. 

There  are  few  subjects  more  difficult  than  the  proper  rule  by 
which  damages  are  to  be  estimated.  It  is  often  said  that  in  actions 
founded  upon  contracts,  the  rule  is  compensation.  But  this  practic- 
ally amounts  to  very  little.  What  is  compensation  ?  In  many  con- 
tracts, the  parties  have  themselves  fixed  the  measure.  In  many 
others,  the  contract  furnishes  no  standard,  and  it  is  impossible  to 
prescribe  any  general  rule  which  shall  in  all  cases  give  to  a  plaintiff 
a  precise  equivalent  for  what  he  would  have  enjoyed  if  the  contract 
had  not  been  violated.  "Without  attempting  to  deduce  from  adjudi- 
cated cases  any  rule  of  universal  application,  it  may  suffice,  for  the 
present,  to  refer  to  a  few  principles  that  seem  to  be  supported  by 
the  better  authorities.  While  it  is  well  settled  that  a  jury  are  not 
at  liberty  to  allow  mere  speculative  damages,  yet  there  are  cases  in 
which  a  plaintiff  has  been  held  entitled  to  what  he  would  have  made 
had  the  contract  been  fulfilled  :  I  mean,  to  what  he  would  have 
made  immediately  out  of  the  contract. 

The  loss  of  such  profits  is   not  consequential,  in  the  sense  in 


228      CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

which  consequential  damages  are  sometimes  said  to  be  too  remote. 
They  are  in  the  immediate  contemplation  of  the  parties  when  the 
contract  is  made.  Thus,  in  contracts  for  the  sale  and  delivery  of 
goods  at  a  designated  time  or  place,  the  damages  are  measured  by 
the  price  of  the  goods  on  the  day  named,  or  at  the  place  specified,  if 
there  be  a  failure  on  the  part  of  the  vendor.  This  is,  in  effect, 
making  him  responsible  for  profits.  This  subject  has  received  a 
very  thorough  discussion  in  New  York,  in  Masterton  v.  The  Mayor 
of  Brooklyn  (7  Hill,  62).  That  was  a  case  in  which  the  plaintiffs  had 
agreed  to  furnish  marble  for  the  City  Hall  of  Brooklyn,  for  which 
the  defendants  agreed  to  pay  as  the  work  progressed.  After  a  por- 
tion of  the  marble  had  been  delivered,  the  defendants  refused  to  re- 
ceive any  more,  and  the  plaintiffs  brought  covenant  for  a  breach  of 
the  contract.  They  were  allowed  to  recover  the  profits  they  would 
have  made  from  the  actual  performance  of  the  contract.  The  court, 
while  denying  the  right  of  the  plaintiffs  to  remote  and  contingent 
damages,  or  to  profits  of  collateral  enterprises,  in  which  they  might 
have  been  induced  to  engage  on  the  faith  of  the  contract  with  the 
defendants,  remarked  that,  "  profits  or  advantages,  which  are  the  di- 
rect and  immediate  fruits  of  the  contract  entered  into  between  the 
parties,  stand  upon  a  different  footing.  They  are  part  and  parcel  of 
the  contract  itself,  entering  into  and  constituting  a  portion  of  its 
very  elements  ;  something  stipulated  for,  the  right  to  the  enjoyment 
of  which  is  just  as  clear  and  plain  as  to  the  enjoyment  of  any  other 
stipulation."  This  is  also  the  doctrine  of  Fox  v.  Harding  (7  Cush. 
516) ;  Kailroad  Company  v.  Howard  (13  How.  307) ;  Cook  v.  The 
Commissioners  of  Hamilton  (6  McLean,  612) ;  Richardson  v.  Mellish 
(2  Bingh.  229).  So  also  it  is  held  in  this  State,  that  in  an  action  for  a 
breach  of  a  covenant  to  sell  land,  a  plaintiff  is  entitled  to  recover 
damages  for  the  loss  of  his  bargain,  beyond  the  money  paid  with  in- 
terest, unless  the  breach  of  the  covenant  has  not  been  in  consequence 
of  the  fraud  or  bad  faith  of  the  vendor.  Bitner  v.  Brough,  (1  Jones, 
127).  Indeed,  the  principle  does  not  appear  to  have  been  denied. 
The  contest  in  the  reported  cases  has  been,  whether  the  loss  of  the 
bargain  is  not  a  proper  subject  to  enter  into  the  estimate  of  damages, 
even  where  there  was  no  fraud  or  breach  of  faith.  In  McClowry  v. 
Croghan's  Administrator  (7  Casey,  22),  the  measure  of  damages  for 
the  breach  of  a  contract  to  lease,  was  declared  to  be  the  same  as  for 
a  breach  of  a  contract  to  sell ;  as  indeed  it  must  be,  for  a  lease  is  but 
a  partial  sale,  the  rent  being  the  consideration.  We  cannot  say, 
therefore,  that  the  jury  were  misled  in  this  case  by  being  told  that 
the  damages  of  the  plaintiff  would  be  measured  by  what  he  could 


HOY  v.   GRONOBLE.  229 

have  made  on  the  farm.  This  was  but  another  mode  of  saying  that 
he  was  entitled  to  the  value  of  his  bargain.  The  worth  of  that  was 
what  it  would  have  yielded,  deducting,  of  course,  the  value  of  the 
labor  necessary  to  be  bestowed. 

But  we  think  there  was  error  in  charging  the  jury  that  "  besides 
allowing  these  damages  "  (what  the  plaintiff  could  have  made  on  the 
farm),  they  might  also  allow  damages  "  for  violation  of  faith."  This 
is  something  more  than  compensation.  It  is  an  allowance  of  vindic- 
tive damages,  which  is  not  permitted  in  actions  for  a  breach  of  con- 
tract, with  very  rare  exceptions,  perhaps  in  none,  except  the  single 
case  of  breach  of  promise  of  marriage.  The  violation  of  most  con- 
tracts involves  a  breach  of  faith.  If  a  promisor  must  respond  in 
damages  for  that,  as  well  as  for  his  violation  of  his  promise,  he  must 
make  duplicate  satisfaction.  The  learned  judge  was  led  into  the 
mistake  by  a  dictum  of  Judge  Rogers,  in  Holler  v.  Weiner  (3  Har- 
ris, 242).  In  that  case,  there  was  no  question  raised  respecting  the 
constituents  of  the  damages.  The  contest  was  in  regard  to  the 
plaintiff's  right  to  recover  any  particular  damage  which  he  had  suf- 
fered. The  doubt  was  whether  there  was  any  evidence  of  any  dam- 
age. Judge  Rogers,  in  delivering  the  opinion,  after  having  shown 
what  was  the  contract  and  how  it  had  been  violated,  remarked, 
"  This  is  an  obvious  wrong,  for  which  the  plaintiff  is  entitled  to 
damages,  as  well  for  the  breach  of  the  contract  as  for  the  violation 
of  faith."  To  hold  that  it  was  intended  by  this  to  warrant  the  re- 
covery of  damages  for  breach  of  faith,  in  addition  to  those  which 
result  from  violation  of  the  contract,  would  be  a  perversion  of  the 
meaning  of  the  judge.  His  only  purpose  was  to  show  that  some 
damages  were  recoverable,  and  the  ground  was  either  breach  of  the 
contract,  or  its  synonym — violation  of  faith.  The  case,  therefore, 
does  not  sustain  the  instruction  which  was  given  to  the  jury  in  the 
present  action. 

The  judgment  is  reversed,  and  a  venire  de  novo  awarded. 


230  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 


Special  Contract  ;   Refusal  of  Vendee  to  accept  Goods. 


SUPREME   COURT,    NEW    HAMPSHIRE. 

[1870.]  Gordon  v.  Norris  (49  K".  H.  370). 

The  measure  of  damages  in  an  action  for  goods  bargained  and  sold  is  the  contract  price 
for  the  goods. 

When  the  vendee  refuses  to  receive  and  pay  for  ordinary  goods,  wares  and  merchandise, 
which  he  has  contracted  to  purchase,  the  measure  of  damages  which  the  vendor  is 
entitled  to  recover,  is  not  ordinarily  the  contract  price  of  the  goods,  but  the  differ- 
ence between  the  contract  price  and  the  market  price  or  value  of  the  same  goods  at 
the  time  when  the  contract  was  broken. 

But  when  an  artist  prepares  a  statue  or  a  picture  of  a  particular  person,  to  order,  or  a 
mechanic  makes  a  specific  article  in  his  line,  to  order,  and  after  a  particular  measure, 
pattern  or  style,  or  for  a  particular  use  or  purpose,  when  he  has  fully  performed  his 
part  of  the  contract  and  tendered  or  offered  to  deliver  the  article  thus  manufactured 
according  to  contract,  and  the  vendee  refuses  to  receive  and  pay  for  the  same,  he 
may  recover  as  damages  in  an  action  against  the  vendee  for  breach  of  the  contract, 
the  full  contract  price  of  the  manufactured  article. 

But  in  such  case,  or  in  the  case  of  an  ordinary  contract  for  the  purchase  and  sale  of 
goods  and  merchandise,  if  the  vendee  refuses  to  accept  the  property,  the  vendor 
may,  if  he  choose,  after  notice  to  the  vendee,  sell  the  property  at  auction,  and  recover 
of  the  vendee  the  difference  between  the  contract  price  and  the  price  for  which  the 
goods  were  sold. 

Assumpsit,  by  Nathaniel  Gordon  against  John  L.  Norris  and 
George  B.  Neal,  on  account  annexed,  and  for  goods  sold  and  deliv- 
ered and  goods  bargained  and  sold,  with  a  special  count  for  not  tak- 
ing and  paying  for  a  quantity  of  hay  alleged  to  have  been  sold  by 
the  plaintiff  to  the  defendants,  on  June  5th,  1867,  at  $38  per  ton.' 
The  suit  was  brought  January  30th,  1868,  to  recover  the  price  of 
twenty-seven  tons  and  six  hundred  pounds  of  hay  sold,  after  deduct- 
ing the  sum  of  $500,  advanced  towards  it  by  the  defendants. 

The  plaintiff's  case  was,  that  he  sold  to  the  defendants  this  hay, 
then  in  his  barn,  the  price  to  be  paid  in  advance,  and  the  hay  then 
to  be  hauled  by  plaintiff,  and  delivered  at  the  Kingston  depot,  about 
two  miles  from  the  barn.  The  defendants  contended  that  they  pur- 
chased only  the  good  English  hay,  and  that  much  of  the  plaintiff's 
hay  was  not  of  that  quality.  It  appeared  that  the  bargain  was  made 
June  5th,  1867,  when  the  defendants  paid  towards  the  hay  $500,  and 
soon  after  the  price  of  hay  fell  considerably  ;  none  of  it  was  deliv- 
ered, the  parties  differing  as  to  what  hay  was  sold,  and  about  paying 
in  advance ;  and  on  July  30th,  1867,  they  entered  into  an  agreement 
under  their  hands  and  seals,  reciting  the  sale  and  purchase  of  the 


GORDON    v.   NORRIS.  231 

hay,  and  that  the  parties  had  agreed  upon  Winthrop  H.  Dudley,  of 
Brentwood,  to  assort  the  hay,  and  saying  that  he  "is  hereby  re- 
quested to  separate  the  swale  hay  from  the  good  hay,  as  the  said 
Norris  and  Neal  are  to  have  the  good  hay,"  and  the  parties  will  pay 
him  for  his  services.  Either  party  may  read  this  agreement  at  the 
hearing,  and  also  the  declaration.  Mr.  Dudley  made  no  assorting  of 
the  hay  until  April  7th,  1868,  when  he  made  his  report,  that  there 
were  16  tons  1301  lbs.  of  good  hay,  and  11  tons  168  lbs.  of  mixed  or 
swale  hay.  The  assorting  was  made  with  the  assent  of  the  parties, 
although  the  plaintiff  objected  that  it  was  not  done  according  to 
agreement,  which  was  to  separate  it  into  good  hay  and  swale  hay,  and 
not  mixed  or  sivale  hay.  At  the  January  term,  1869,  this  action  was. 
referred,  and  a  report  made  by  the  referee  at  January  term,  1870, 
allowing  the  plaintiff  the  full  price  of  all  the  hay  at  $38  per  ton 
with  interest,  and  thereupon  the  defendants  moved  to  set  aside  the 
report. 

It  appears  that  the  referee  went  upon  the  ground  that  plaintiff 
ought  to  recover  the  full  price  of  the  hay,  and  that  the  title  to  it 
would  thereupon  vest  in  the  defendants ;  finding  that  defendants 
examined  it  before  they  bought,  and  knew  that  it  was  mixed  hay, 
and  that  the  bargain  was  for  the  whole  of  it  at  $38  per  ton,  and  he 
also  regarded  the  agreement  of  July  30th,  1867,  as  not  carried  out, 
and  as  not  determining  definitely  that  defendants  were  to  take  only 
the  good  hay,  but  only  as  evidence  bearing  upon  the  question  what 
was  the  original  contract,  which  he  found  to  be  for  the  whole  hay  at 
$38  per  ton.  If  the  court  should  be  of  the  opinion  that  the  measure 
of  damages  would  be,  under  the  circumstances  here,  only  the  differ- 
ence between  the  contract  price  and  the  actual  value  of  the  hay  when 
it  ought  to  have  been  taken  and  paid  for,  and  that  the  title  to  the 
hay  would  not  vest  in  the  defendants,  the  report  is  to  be  set  aside, 
and  the  case  recommitted  ;  and  so  if  the  court  should  be  of  the 
opinion  that  the  agreement  of  July  30th,  1867,  is  to  be  regarded  as 
determining  that  the  purchase  was  only  of  the  good  hay. 

If  the  decision  should  be  the  other  way  upon  all  these  points, 
there  is  to  be  judgment  on  the  report. 

These  questions  were  reserved  for  the  whole  court. 

Sargent,  J.,  after  holding  that  the  action  could  not  be  main- 
tained for  goods  sold,  but  that  the  referee's  award  must  be  regarded 
as  based  on  the  special  count  in  the  writ,  proceeded  as  follows  :  The 
remaining  question  is  as  to  the  rule  of  damages  that  the  referee 
should  have  adopted,  whether  in  finding  upon  the  special  contract 
as  we  assume  he  did,  he  should  have  allowed  the  plaintiff,  as  dam- 


232  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

ages,  the  whole  of  the  contract  price,  or  only  the  difference  between 
the  contract  price  and  the  market  price  at  the  time  the  contract 
was  broken. 

Sedgwick,  in  his  work  on  Damages  (5th  ed.  page  312),  says : 
"  When  the  vendee  is  sued  for  non-performance  of  the  contract  on 
his  part,  in  not  paying  the  contract  price,  if  the  goods  had  been  deliv- 
ered, the  measure  of  damages  is  of  course  the  price  named  in  the 
agreement.  But  if  their  possession  has  not  been  changed,  it  has 
been  doubted  whether  the  rule  of  damages  is  the  price  itself,  or  only 
the  difference  between  the  contract  price  and  the  value  of  the  article 
at  the  time  fixed  for  its  delivery.  It  seems  to  be  well  settled  in  such 
cases,  that  the  vendor  can  resell  them  if  he  see  fit,  and  charge  the 
vendee  with  the  difference  between  the  contract  price  and  that  real- 
ized at  the  sale. 

"  But  if  the  vendor  does  not  pursue  this  course,  and  without  resell- 
ing the  goods,  sues  the  vendee  for  his  breach  of  contract,  the  ques- 
tion arises,  which  we  have  already  stated,  whether  the  vendor  can 
recover  the  contract  price  or  only  the  difference  between  that  price  and 
the  value  of  the  goods  which  remain  in  the  vendor's  hands,  and  the  rule 
appears  to  be  that  the  vendor  can  recover  the  contract  price  in  full." 

He  cites  as  an  authority,  Graham  v.  Jackson  (14  East,  498),  which 
was  upon  a  special  contract  to  purchase  three  hundred  tons  of  Cam- 
peachy  logwood  at  35  pounds  per  ton,  to  be  of  real  merchantable 
quality,  and  such  as  might  be  determined  to  be  otherwise  by  impar- 
tial judges  to  be  rejected.  Under  this  contract  the  plaintiff,  the 
vendor,  had  shipped  the  three  hundred  tons  of  logwood  from  New 
York,  and  tendered  it  to  the  purchaser  in  England.  It  was  held  that 
under  that  contract  and  the  circumstances  of  the  case,  the  vendee 
was  bound  to  take  so  much  of  the  wood  tendered  as  turned  out  to  be 
of  the  sort  described,  at  the  contract  price,  though  it  turned  out? 
upon  examination,  that  sixteen  out  of  the  three  hundred  tons  was  of 
a  different  and  inferior  quality.  But  this  was  a  construction  given 
to  that  particular  contract,  and  not  the  statement  of  any  general 
principle,  to  be  applied  to  all  cases. 

He  then  says,  "  the  question  has  been  considered  in  New  York 
and  decided  in  the  same  way.  He  cites,  Bement  v.  Smith  (15  Wend. 
493).  But  an  examination  of  that  case  shows  that  the  decision  is 
put  upon  the  express  grounds  that  what  the  plaintiff  did  in  the  case 
amounted  to  a  delivery  of  the  property.  The  declaration  was  for 
work  and  labor  and  goods  sold,  and  also  upon  special  counts,  setting 
forth  the  contract  and  alleging  a  delivery  of  the  goods  by  plaintiff. 
This  cannot  be  an  authority  for  the  doctrine  claimed. 


GORDON   v.   NORRIS.  233 

But  there  is  a  distinction  between  that  case  and  the  ordinary 
cases  of  goods  sold  and  delivered,  which  is  alluded  to  in  the  opinion, 
viz.,  the  distinction  between  a  contract  to  sell  goods  then  in  exist- 
ence, and  an  agreement  to  furnish  materials  and  manufacture  an 
article  in  a  particular  way,  and  according  to  order,  which  is  not  yet 
in  existence.  The  latter  is  said  not  to  be  so  much  a  contract  for  the 
sale  and  purchase  of  goods,  as  a  contract  for  work  and  labor  merely, 
and  it  is  held  that  in  that  class  of  cases  the  statute  of  frauds  does  not 
apply  when  there  is  nothing  paid  and  no  actual  delivery. 

In  a  large  class  of  cases  of  that  kind,  where  the  plaintiff  has  made 
surgical  instruments  of  a  particular  kind,  and  according  to  order,  for 
the  defendant  who  had  patented  the  same,  and  which  would  of 
course  be  worthless  in  the  hands  of  the  plaintiff,  or  where  a  tailor 
had  made  a  suit  of  clothes  to  order,  of  a  particular  description,  and 
for  a  particular  measure,  or  a  shoemaker  had  made  boots  or  shoes  to 
order,  and  of  a  particular  size  and  pattern,  or  the  carriage  maker  had 
made  a  carriage  in  the  same  way,  of  a  particular  style  and  pattern, 
or  the  artist  has  painted  a  portrait  of  an  individual  to  order,  or  an 
engineer  has  constructed  an  engine  according  to  order  for  a  particu- 
lar use,  &c,  though  the  mechanic  or  artist  may  sell  the  goods,  if  he 
choose,  and  recover  of  the  defendant  the  difference  between  the  con- 
tract price  and  the  price  for  which  the  article  was  sold,  yet  it  is  held 
that  he  may,  if  he  choose,  when  he  has  fully  performed  his  part  of 
the  contract  and  tendered  the  article  thus  manufactured  to  the  de- 
fendant, or  offered  it  at  the  place  appointed,  recover  the  full  value 
of  the  article,  and  leave  the  defendant  to  sell  or  use  or  dispose  of  the 
article  at  his  pleasure,  and  for  the  reason,  in  addition  to  that  already 
stated,  that  the  article  thus  manufactured  for  a  particular  person,  or 
according  to  a  particular  pattern,  or  for  a  particular  use,  may  be  of 
comparatively  little  value  to  anybody  else,  or  for  any  other  use  or 
purpose,  but  this  class  of  cases  are  recognized  as  exceptions  to  the 
general  rule,  which  is  to  be  applied  in  the  sale  of  ordinary  goods  or 
merchandise  which  have  a  fixed  market  value  (Allen  v.  Jarvis,  20 
Conn.  38 ;  Bement  v.  Smith,  15  Wend.  493,  and  cases  ;  Ballantine 
v.  Robinson,  26  Penn.  177). 

Mr.  Sedgwick  also  cites  a  case  from  Massachusetts  as  sustaining 
his  view  (Thompson  v.  Algier,  12  Met.  428).  But  an  examination 
of  the  case  shows  that  it  was  a  contract  for  the  purchase  and  sale  of 
railway  shares,  and  that  there  had  been  a  part  payment  for  the  same, 
and  that  while  the  contract  was  in  force,  the  plaintiff  had  actually 
transferred  the  stock  on  the  books  of  the  company  to  the  vendee,  so 
that  the  plaintiff  had  actually  lost  his  title  to  the  shares,  and  upon 


231       CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

this  special  ground  the  court  held  that  plaintiff  was  entitled  to  re- 
cover the  contract  price.  But  in  that  case  it  is  stated  distinctly  that 
the  general  rule  in  that  State,  is,  that  in  contracts  for  the  sale  of  per- 
sonal property,  the  defendant  would  be  liable  to  pay  the  difference 
between  the  agreed  price  and  the  market  value  of  the  goods  on  the 
day  of  delivery. 

Dewey,  J.,  in  the  opinion  (page  413),  says,  that  in  ordinary  cases 
this  rule  would  do  entire  justice  to  the  vendor.  He  would  retain 
the  property  as  fully  in  his  hands  as  before,  and  a  payment  of  the 
difference  between  the  market  price  and  the  price  stipulated  would 
fully  indemnify  him.  And  that  in  that  case,  if  the  defendant  had 
repudiated  the  contract  before  any  transfer  of  stock  had  been  made 
to  him  on  the  books  of  the  corporation,  that  rule  might  have  been 
properly  applied  here.  This  case,  then,  stands  upon  special  grounds, 
but  it  states  fully  and  plainly  what  the  general  rule  is  understood  to 
be  in  that  State,  and  is  by  no  means  an  authority  for  the  doctrine 
which  the  author  seeks  to  establish. 

Mr.  Sedgwick  admits  that  where  the  plaintiff  has  not  the  goods 
that  he  agrees  to  sell,  but  makes  a  side  contract  with  another  to  fur- 
nish them,  he  will  only  be  allowed  to  recover  the  difference  between 
the  original  contract  price  and  the  market  price  at  the  time  of  the 
offer,  with  interest.  He  then  cites  some  authorities  where  goods 
were  sold  and  delivered,  to  be  paid  for  by  bill  or  note  payable  at  a 
future  day,  and  the  bill  or  note  is  not  given.  There,  though  the 
vendor  cannot  maintain  assumpsit  for  the  goods  sold  and  delivered, 
until  the  term  of  credit  has  expired,  yet  he  may  sue  immediately  for 
the  breach  of  the  special  agreement,  and  may  recover  as  damages  the 
whole  value  of  the  goods.  But  that  does  not  militate  against  the 
general  rule,  because  it  comes  under  another  general  rule,  that  when 
the  goods  are  sold  and  delivered,  the  contract  price  is  the  measure 
of  damages. 

We  have  seen  that  the  general  rule  in  Massachusetts,  in  actions 
for  the  non-acceptance  of  property  sold  or  contracted  for,  is  the  dif- 
ference between  the  price  agreed  to  be  paid  for  it  and  its  real  value 
or  market  price  (Thompson  v.  Algier,  12  Met.  428,  443). 

Such  is  distinctly  stated  to  be  the  general  rule  in  Connecticut,  in 
Allen  v.  Jarvis  (20  Conn.  38) ;  and  in  Pennsylvania,  Girard  v.  Tag- 
gart  (5  Serg.  &  K.  19) ;  Ballantine  v.  Eobinson  (46  Penn.  177) ;  and 
in  Wisconsin,  Ganson  v.  Madigan  (13  Wis.  67) ;  and  in  New  York, 
Dana  v.  Fiedler  (12  N.  Y.  41) ;  Orr  v.  Bigelow  (14  K  Y.  556) ;  Dey 
v.  Dox  (9  Wend.  129) ;  Davis  v.  Shields  (24  Wend.  322) ;  Stanton  v. 
Small  (3  Sandf.  230)  ;    Mallory  v.  Lord  (29  Barb.  454,  465)  ;    and  in 


GORDON    v.   KORRIS.  235 

Missouri,  Whittemore  v.  Coates  (14  Mo.  9) ;  also,  in  Kentucky,  Wil- 
liams v.  Jones  (1  Bush,  621,  627),  in  which  Hardin,  J.,  delivering 
the  opinion,  says  :  "  The  true  measure  of  damages  for  the  failure  to 
receive  and  pay  for  property  contracted  for  is  not  the  contract  price, 
but  it  is  the  difference  between  the  contract  price  and  the  actual 
value  of  the  property  when  it  should  have  been  received  under  the 
contract." 

So  in  a  contract  for  the  sale  of  railway  shares.  The  rule  of  dam- 
ages, which  either  party  is  entitled  to  recover,  is  the  difference  be- 
tween the  contract  price  and  the  market  price  at  the  time  of  deliv- 
ery (Red.  on  Rail.  [ed.  of  1858],  51 ;  1  Red.  on  Rail.  132,  and  cases 
cited). 

There  is  some  diversity  prevailing  in  regard  to  the  rule  of  dam- 
ages for  breach  of  a  contract  for  the  sale  and  purchase  of  lands.  In 
New  York,  it  is  held  that  in  an  action  against  the  purchaser  for  not 
receiving  a  deed  and  paying  for  lands  bargained  for,  the  damages  are 
the  whole  value  of  the  land,  though  the  purchaser  gets  no  title  to 
it  (Richards  v.  Eddick,  17  Barb.  260). 

But  such  is  not  the  rule  in  the  English  courts  (Laird  v.  Prince,  7 
Mees.  &  W.  474,  and  cases  cited).  Neither  is  such  the  rule  in  Mas- 
sachusetts, for  though  there  are  dicta  favoring  the  New  York  rule 
— in  Sears  v.  Boston  (16  Pick.  357) ;  in  Gile  v.  Bicknell  (2  Cush. 
358) ;  and  in  Jacobs  v.  Railroad  (8  Cush.  223) — yet  the  question  is 
directly  raised,  considered  and  decided  in  Old  Colony  Railroad  v. 
Evans  (6  Gray,  25),  in  which  it  is  held  that  "  upon  more  full  con- 
sideration of  the  question  of  the  measure  of  damages  in  an  action  at 
law,  when  the  defendant  has  refused  to  receive  the  deed  tendered 
him,  the  court  are  of  opinion  that  the  proper  rule  of  damages  in  such 
a  case  is  the  difference  between  the  price  agreed  to  be  paid  for  the 
land,  and  the  salable  value  of  the  land  at  the  time  the  contract  was 
broken. 

In  this  State  we  find  it  settled,  in  Stevens  v.  Lyford  (7  N.  II. 
360),  that  upon  a  breach  of  a  contract  for  the  delivery  of  lumber,  the 
purchaser  was  entitled  to  recover  the  difference  between  the  value  of 
the  lumber  at  the  place  where  it  was  to  be  delivered,  and  the  sum 
to  be  paid.  And  in  Rand  v.  Railroad  (40  N.  H.  79),  it  is  assumed 
that  the  same  rule  would  apply  to  the  vendor,  and  that  the  proper 
rule  of  damages  in  case  the  subscriber  of  railroad  stock  refuses  to 
pay  for  and  receive  the  same,  when  no  certificate  of  the  stock  has 
been  issued,  would  be  the  difference  between  the  price  at  which  he 
agreed  to  take  the  stock,  and  its  actual  or  market  value  at  the  date 
of  the  breach  of  the  contract. 


236       CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

And  in  McKean  v.  Turner  (45  K  H.  203,  205),  Bellows,  J.,  in 
commenting  upon  Rand  v.  Railroad  (stipra),  says  :  "  There  the  claim 
was  upon  the  contract  of  the  trustee  to  take  and  pay  for  some  shares 
in  the  capital  stock  of  the  corporation,  which  shares  had  never  been 
delivered  or  accepted.  The  measure  of  damages,  therefore,  was  the 
difference  between  the  contract  price  and  the  actual  value  of  the 
stock  at  the  time  of  the  breach  of  the  contract,  and  ordinarily  the 
market  value  of  stock  can  readily  be  determined." 

In  the  case  before  us,  we  understand  from  the  case  that  the  ref- 
eree found  that  the  property  had  not  passed  to  the  defendant.  It 
was  not  a  specific  article  of  property  that  had  been  manufactured  to 
order  for  the  defendant,  but  the  property  in  question  was  hay, 
which  had  a  market  value  easily  ascertainable.  Upon  the  finding  of 
the  referee,  as  we  understand  it,  this  property  remained  not  only  in 
the  possession  of  the  plaintiff,  but  his  property. 

"We  think  in  such  a  case,  it  would  be  in  accordance  with  the  great 
weight  of  authority,  besides  being  reasonable  and  just  in  itself,  to 
hold  that  the  rule  in  assessing  plaintiff's  damages,  would  be  to  give 
him  the  difference  between  the  contract  price  of  the  hay  and  its 
market  value,  at  the  time  when  the  defendants  should  have  received 
and  paid  for  it ;  taking  into  account,  of  course,  the  fact  that  by  the 
contract  the  plaintiff  was  to  draw  the  hay  to  the  depot  to  be  deliv- 
ered, which  was  included  in  the  contract  price. 

According  to  the  provisions  of  the  case,  the  report  is  set  aside 
and  the 

Cause  recommitted  to  the  referee. 


Contract  of  Sale;   Damages  not  Allowed  fob  Injurious  Conse- 
quences which  the  Plaintiff  might  have  Avoided. 


SUPREME   COURT,    MAINE. 

[1830.]     Miller  v.  Mariner's  Church  (7  Greenl.  51). 

If  the  party  entitled  to  the  benefit  of  a  contract,  can  protect  himself  from  a  loss  arising 
from  the  breach  thereof,  at  a  trifling  expense,  or  with  reasonable  exertions,  it  is  his 
duty  to  do  it.  And  he  can  charge  the  delinquent  party  with  such  damages  only  as, 
with  reasonable  endeavors  and  expense,  he  could  not  prevent. 

This  was  an  action  of  assumpsit,  brought  under  a  special  resolve 
of  the  legislature,  passed  March  5,  1829,  for  the  price  of  a  quantity 


MILLER  v.   MARINER'S  CHURCH.  237 

of  hammered  stone,  the  defendants  having  leave  to  claim  in  offset 
the  amount  of  damages  occasioned  by  any  breach  of  the  contract. 

Several  witnesses  on  the  part  of  the  defendants  positively  testi- 
fied that  the  late  warden  of  the  State  prison  agreed  that  the  stones, 
which  he  contracted  to  furnish  for  the  use  of  the  defendants,  should 
be  delivered  at  Portland  by  the  fifteenth  day  of  June,  1828.  But 
the  late  warden  as  positively  testified  that  he  did  not  and  would  not 
agree  absolutely  that  they  should  be  delivered  at  that  time  ;  but 
promised  that  he  would  endeavor  and  do  the  best  he  could  to  cause 
them  to  be  delivered  as  early  as  that. 

The  stones  not  having  been  wholly  furnished  till  November  fol- 
lowing, the  counsel  for  the  defendants  insisted  that,  from  the  evi- 
dence adduced,  they  were  entitled  to  damages,  whether  the  contract 
was  found  to  be  such  as  was  testified  by  their  witnesses,  or  by  the 
late  warden.  If  according  to  the  former,  then  they  were  entitled  to 
large  damages  arising  from  loss  of  labor,  loss  of  rents,  and  the  de- 
fective character  of  the  work.  If  by  the  latter,  they  still  contended 
that  the  contract  had  been  violated,  but  claimed  damages  upon  a  basi& 
less  definite  and  extensive. 

The  judge  instructed  the  jury  that  if  they  believed  that  the  con- 
tract was  such  as  was  testified  by  the  defendants'  witnesses,  they 
ought  to  allow  to  the  defendants  the  whole  or  such  parts  of  their 
claim  for  damages  as  the  parties,  bestowing  proper  attention  upon 
the  subject,  at  the  time  of  making  the  contract,  might  have  contem- 
plated as  likely  to  result  from  its  non-fulfillment.  At  the  request  of 
the  counsel  for  the  plaintiff,  he  further  instructed  them  that  if  the 
contract  was  for  delivery  of  the  stones  by  a  fixed  time,  the  defend- 
ants would,  in  that  case,  be  entitled  to  no  more  damages  than  they 
had  or  would  have  sustained,  if,  when  the  time  of  delivery  had  ex- 
pired, they  had  stopped  the  receiving  of  any  more  from  the  warden, 
and  had  proceeded,  with  due  diligence,  to  furnish  themselves  else- 
where ;  and  that,  had  the  materials  been  bricks  or  boards,  which 
could  readily  have  been  procured  at  short  notice,  in  the  place  where 
their  building  was  being  erected,  the  measure  of  damages  would 
have  been  to  estimate  what  would  have  been  sufficient  for  the  neces- 
sary delay  and  additional  price,  if  any.  The  counsel  for  the  defend- 
ants objecting  to  this  instruction,  the  judge  added,  at  their  request, 
that  if  the  defendants  were  prevented  or  deterred,  by  the  conduct 
or  assurances  of  the  plaintiff  after  the  breach  of  the  contract,  from 
stopping  the  further  receipt  of  stones  from  him,  and  proceeding  to 
supply  themselves  elsewhere,  there  ought  to  be  no  mitigation  of 
damages  upon  the  ground  suggested  by  the  counsel  for  the  plaintiff. 


238  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

He  further  proceeded  to  instruct  the  jury  that,  from  the  encourage- 
ment which  the  defendants  received  from  the  jjlaintiff,  after  the  al- 
leged breach  of  the  contract,  that  the  stones  should  be  furnished 
with  all  possible  dispatch,  and  the  time  which  would  necessarily  be 
required  to  prepare  them,  if  they  had  then  ordered  them  from  an- 
other quarter,  it  did  not  seem  that  common  prudence,  or  a  due  re- 
gard to  their  interests,  or  the  interest  of  the  plaintiff,  required  them 
to  have  taken  any  other  course  than  they  did  take. 

The  jury,  under  these  instructions,  allowed  certain  damages  to  the 
defendants,  and  returned  a  verdict  for  the  plaintiff  for  the  balance 
of  his  account ;  which  was  taken  subject  to  the  opinion  of  the  court 
upon  the  correctness  of  the  instructions  given,  and  the  admissibility 
of  the  parol  testimony  received  from  Mr.  Cutter. 

Weston,  J. — By  the  common  law,  the  estimation  of  damages  is 
within  the  province  of  the  jury.  Courts  may,  and  often  do,  in 
cases  of  manifest  excess,  interfere  by  granting  a  new  trial.  Where 
the  injury  affects  the  personal  feelings,  this  is  rarely  done.  And  in 
cases  of  fraud  or  wanton  trespass,  considerable  latitude  has  been  al- 
lowed. But  where  there  exists  a  fixed  standard  or  scale  by  which 
damages  may  be  calculated,  a  jury  will  not  be  permitted  to  depart 
from  it.  Thus  assumpsit,  instead  of  debt,  is  now  the  remedy  uni- 
versally resorted  to  upon  simple  contracts  for  the  payment  of  money. 
By  the  form  of  the  action,  damages  are  sought  for  the  non-perform- 
ance ;  but  the  measure  of  damages  is  the  debt  due,  with  interest  for 
the  detention,  for  a  longer  or  shorter  period,  according  to  circum- 
stances. In  other  cases,  arising  from  the  non-performance  of  agree- 
ments, the  standard  is  less  definite ;  and  necessarily  attended  with 
greater  uncertainty.  In  general,  the  delinquent  party  is  holden  to 
make  good  the  loss  occasioned  by  his  delinquency.  But  his  liability 
is  limited  to  direct  damages,  which,  according  to  the  nature  of  the 
subject,  may  be  contemplated  or  presumed  to  result  from  his  failure. 
Remote  or  speculative  damages,  although  susceptible  of  proof,  and 
deducible  from  the  non-performance,  are  not  allowed. 

And  if  the  party  injured  has  it  in  his  power  to  take  measures  by 
which  his  loss  may  be  less  aggravated,  this  will  be  expected  of  him. 
Thus  in  a  contract  of  assurance,  where  the  assured  may  be  entitled 
to  recover  for  a  total  loss,  he,  or  the  master  employed  by  him,  be- 
comes the  agent  of  the  assurer  to  save  and  turn  to  the  best  account 
such  of  the  property  assured  as  can  be  preserved. 

The  purchaser  of  perishable  goods  at  auction  fails  to  complete 
his  contract.  What  shall  be  done  %  Shall  the  auctioneer  leave  the 
goods  to  perish,  and  throw  the  entire  loss  upon  the  purchaser  ?   That 


MILLER  v.  MARINER'S  CHURCH.  230 

would  be  to  aggravate  it  unreasonably  and  unnecessarily.  It  is  his 
duty  to  sell  them  a  second  time,  and  if  they  bring  less,  he  may  re- 
cover the  difference,  with  commissions  and  other  expenses  of  resale, 
from  the  first  purchaser. 

If  the  party  entitled  to  the  benefit  of  a  contract  can  protect  him- 
self from  a  loss  arising  from  a  breach,  at  a  trifling  expense,  or  with 
reasonable  exertions,  he  fails  in  social  duty,  if  he  omits  to  do  so,  re- 
gardless of  the  increased  amount  of  damages  for  which  he  may  intend 
to  hold  the  other  contracting  party  liable.  Qui  non  prohibet,  cum 
proh  ibere  possit,  jubet.  And  he  who  has  it  in  his  power  to  prevent 
an  injury  to  his  neighbor,  and  does  not  exercise  it,  is  often  in  a 
moral,  if  not  in  a  legal  point  of  view,  accountable  for  it.  The  law 
will  not  permit  him  to  throw  a  loss,  resulting  from  a  damage  to  him- 
self, upon  another,  arising  from  causes  for  which  the  latter  may  be 
responsible,  which  the  party  sustaining  the  damage  might  by  com- 
mon prudence  have  prevented.  For  example,  a  party  contracts  for 
a  quantity  of  bi'icks  to  build  a  house,  to  be  delivered  at  a  given  time, 
and  engages  masons  and  carpenters  to  go  on  with  the  work.  The 
bricks  are  not  delivered.  If  other  bricks  of  an  equal  quality,  and  for 
the  stipulated  price,  can  be  at  once  purchased  on  the  spot,  it  would 
be  unreasonable,  by  neglecting  to  make  the  purchase,  to  claim  and 
receive  of  the  delinquent  party  damages  for  the  workmen  and  the 
amount  of  rent  which  might  be  obtained  for  the  house,  if  it  had  been 
built.  The  party  who  is  not  chargeable  with  a  violation  of  his  con- 
tract, should  do  the  best  he  can  in  such  cases,  and  for  any  unavoid- 
able loss  occasioned  by  the  failure  of  the  other,  he  is  justly  entitled 
to  a  liberal  and  complete  indemnity. 

The  instructions  of  the  judge  to  the  jury  objected  to  by  the 
counsel  for  the  defendants  at  the  trial,  were  in  conformity  with 
these  principles,  and  in  the  opinion  of  the  court  not  liable  to  legal 
objection. 

Judgment  on  the  verdict. 

Note. — See  Friedlander  v.  Pugh,  Slocomb  &  Co.  43  Miss.  111. 


240  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 


Action  for  price  of  Steamboat  ;  Recoupment  ;  Profits. 


SUPREME  COURT,  NEW  YORK. 

[1839.]    Blanchard  v.  Ely  AND  OTHERS  (21  Wend.  342). 

In  an  action  for  the  recovery  of  the  price  stipulated  for  the  building  of  a  steamboat,  the 
plaintiff  is  entitled  to  recover  the  full  amount,  without  any  deduction  by  way  of 
recoupment  of  damages  to  the  defendant  in  consequence  of  damages  sustained  by 
him  for  the  loss  of  trips  and  the  profits  resulting  therefrom  occasioned  by  defects  in 
the  boat  or  its  machinery. 

The  defendant  in  such  case  is,  however,  entitled  to  an  allowance  for  moneys  necessarily 
expended  by  him  in  supplying  defects  in  the  vessel  or  its  machinery,  so  as  to  make 
it  conform  to  the  plan  specified  in  the  contract ;  and  where  it  is  manifest  that  an 
allowance  on  that  account  ought  to  have  been  made,  and  was  not  made  by  the  jury, 
a  new  trial  will  be  granted. 

The  courts  of  common  law  seem  inclined  to  adopt  the  rules  of  the  civil  law  in  respect  to 
damages  for  the  breach  of  contracts  relating  to  personal  property,  which  is  that  the 
party  entitled  to  claim  performance  may  claim  damages  for  the  non-performance  in 
respect  to  the  particular  thing,  the  object  of  the  contract ;  but  not  such  as  may  have 
been  accidentally  occasioned  thereby  in  respect  to  his  own  affairs — as,  for  instance, 
a  lessee  who  is  evicted  by  a  title  paramount  may  claim  the  expense  of  removal  and 
indemnity  for  advanced  rents,  but  is  not  entitled  to  recover  for  loss  of  custom  estab- 
lished whilst  residing  in  the  house. 

It  is  no  bar  to  a  recovery  that  one  of  several  defendants  has  become  possessed  of  the 
right  of  action  prosecuted  against  him  and  his  co-defendants,  unless  his  name  appears 
upon  the  record  both  as  plaintiff  and  defendant. 

The  doctrine  of  damages  generally  considered. 

This  was  an  action  of  debt,  tried  at  the  New  York  circuit  in 
October,  1837,  before  the  Hon.  Ogden  Edwards,  one  of  the  circuit 
judges. 

In  September,  1834,  a  contract  was  entered  into  between  the 
parties,  by  which  the  plaintiff  engaged  to  build  for  the  defendants  a 
steamboat,  intended  to  ply  on  the  Susquehanna  river  between 
Owego  and  Wilkesbarre,  the  boat  to  be  completed  and  put  in  opera- 
tion by  the  first  day  of  May,  1835,  for  which  the  plaintiff  was  to  be 
paid  the  sum  of  $12,500.  The  boat  was  built,  but  not  entirely 
completed,  when  she  was  accepted  by  a  committee  of  the  defend- 
ants, and  proceeded  down  the  river  about  the  seventh  day  of  May ; 
she  was  accepted  on  condition  that  what  remained  to  be  done  in  her 
completion,  should  be  done,  and  which  was  not  done  until  some 
time  in  July.  On  her  return  to  Owego  she  broke  her  shafts,  which 
were  repaired  at  the  expense  of  the  plaintiff.  This  delayed  her  four 
days,  and  after  she  again  started  for  Owego,  was  delayed  sixteen 
days  more  by  reason  of  the  lowness  of  the  water.     On  her  second 


BLA.NCHARD  v.  ELY.  241 

trip  she  again  broke  her  shafts,  and  the  defendants,  at  their  own 
expense,  procured  a  new  set  from  Xew  York,  which  cost  about 
$700.  The  defendants,  after  they  had  taken  possession  of  the  boat, 
enlarged  her  wheels  and  made  other  alterations,  and  proved  that  the 
guards  were  too  low,  and  that  the  expense  of  altering  them  would 
cost  $250.  Several  witnesses  for  the  defendants  proved  the  iron  of 
the  shafts  to  be  bad;  in  this,  however,  they  were  contradicted  by 
the  plaintiff's  witnesses.  It  was  proved  that  a  trip  between  Owego 
and  Wilkesbarre  could  be  performed  in  four  days  at  a  net  profit  of 
$100  per  trip,  and  that  the  river  between  those  places  is  navigable 
only  four  months  in  the  year.  When  the  plaintiff  first  rested,  the 
defendants  produced  in  evidence  an  instrument  under  seal,  bearing 
date  28th  May,  1835,  executed  by  the  plaintiff,  whereby,  for  the 
consideration  of  $500,  the  plaintiff  assigned  to  James  Pumpelly,  one 
of  the  defendants  in  this  cause,  the  contract  upon  which  this  suit  is 
brought,  and  stated  therein  that  he  had  received  and  indorsed  upon 
the  contract  the  sum  of  $7,975  34,  and  that  he  had  directed  his  at- 
torney to  pay  over  the  balance  due  upon  the  contract,  when  col- 
lected, to  Mr.  Pumpelly,  after  deducting  certain  charges.  On  the 
production  of  this  instrument,  the  plaintiff  read  in  evidence  an  in- 
strument of  the  same  date,  signed  by  Pumpelly,  whereby  he  engaged 
to  pay  over  to  the  plaintiff  all  moneys  he  should  receive  by  virtue  of 
the  assignment  made  to  him,  deducting  such  sums  and  interest  there- 
on as  he  had  that  day  advanced  to  the  plaintiff.  The  defendants 
insisted  that  the  assignment  thus  executed  to  Pumpelly,  one  of  the 
defendants  in  the  cause,  was  a  bar  to  a  recovery.  The  judge,  how- 
ever, ruled  otherwise,  and  instructed  the  jury  that  they  should  de- 
duct from  the  amount  otherwise  due  to  the  plaintiff  such  sum  as 
would  be  equal  to  the  expenses  necessarily  incurred  by  the  defend- 
ants in  remedying  such  defects  as  existed  in  the  boat  or  its  ma- 
chinery ;  but  that  they  were  not  authorized  to  take  into  considera- 
tion the  delay  of  the  boat,  or  loss  of  trips,  or  loss  of  profits  con- 
sequent upon  any  defect  in  the  boat  or  machinery  in  reducing  the 
amount  of  the  plaintiff's  recovery — the  damages  sustained  by  the 
defendants  from  those  causes  being  too  remote  and  consequential  to 
be  allowed  in  this  action,  and  the  remedy  of  the  defendants  for  any 
injury  sustained  from  those  causes  being  by  action  against  the 
plaintiff.  The  jury  found  a  verdict  in  favor  of  the  plaintiff  for 
$5,240  31,  and  consequently  must  have  allowed  the  whole  sum  of 
$12,500,  with  the  interest  thereof  from  1st  May,  1835,  deducting 
only  the  sum  admitted  by  the  plaintiff  in  his  assignment  to  Pum- 
16 


212  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

pelly  tohave  been  received  by  him,  and  a  sum  of  about  $100  besides. 
The  defendants  asked  for  a  new  trial. 

By  the  Court,  Cowen,  J. — The  objection  that  the  assignment  of 
the  articles  of  agreement  by  the  plaintiff  to  one  of  the  defendants 
should  have  been  received  as  a  bar,  is  founded  on  the  principle  that 
where  the  right  of  the  creditor  and  the  liability  of  the  debtor,  or 
any  one  of  several  debtors,  meet  in  the  same  person,  such  coincidence 
works  a  release  by  operation  of  law.  The  reason  is  that  a  man  can- 
not sue  himself ;  the  action  is  suspended  by  the  voluntary  act  of  the 
creditor,  and  is  gone  and  discharged  forever  (2  "Wms.  Ex.  Phila.  ed. 
1832,  p.  811).  It  is  obvious  from  the  bare  statement  of  the  argu- 
ment, that  it  must  mean  a  vesting  of  the  legal  right,  or,  in  other 
words,  a  right  to  sue  in  the  creditor's  own  name,  in  the  person  of 
his  debtor.  Otherwise  the  reason  fails.  It  will,  I  apprehend,  be 
found  applicable  to  those  cases  only  where  the  same  individual,  in 
order  to  sue,  must  appear  on  the  record  both  as  plaintiff  and  defend- 
ant (Main waring  v.  Newman,  2  Bos.  &  Pul.  120).  The  case  of  Yan 
Ness  v.  Forrest  (8  Cranch,  30)  will  be  found  an  authority  for  this 
distinction.  Besides,  it  is  suggested  that  the  assignment  in  this  case 
was  merely  by  way  of  pledge,  or  security  to  one  of  the  defendants 
for  money  lent ;  the  plaintiff  thus  still  retaining  his  interest  as 
general  owner.  It  is  certainly  very  clear,  that,  even  if  he  could 
have  divested  his  legal  interest  by  an  absolute  assignment,  that  could 
not  be  done  by  merely  pledging  it ;  but  he  could  not  part  with  it  in 
either  form.  This  court  has  held  that  a  defendant  may,  before  suit 
brought,  purchase  a  chose  in  action  against  the  plaintiff,  and  use  it 
as  a  set-off ;  and  we  have  often  held  that  the  assignee  is  the  real 
party,  and  shall  be  protected.  But  this  has  always  been  held  in  an 
equitable  sense,  which  would  rather  go  to  favor  the  present  action 
than  to  defeat  it. 

Did  the  judge  narrow  the  jury  too  much  in  the  rule  of  damages  ? 
The  plaintiff  had  failed,  in  some  comparatively  trifling  respects,  to 
make  so  perfect  a  boat  as  he  had  stipulated  for.  The  shafts  were 
not  of  adequate  strength,  in  consequence  of  which  the  boat  was  in- 
terrupted in  some  of  her  trips,  and  the  company  incurred  expense 
in  procuring  repairs  to  be  done,  and  in  towing  the  boat  to  a  proper 
place  for  undergoing  her  repairs.  All  this  the  judge  left  to  the  jury 
to  deduct,  in  their  discretion,  from  the  acknowledged  balance  of 
account  for  building  her.  But  he  directed  them  not  to  allow  for 
delays  and  for  profits  which  might  have  been  made  from  the  trips 
that  were  lost.  No  common-law  authority  was  cited  at  the  bar,  one 
way  or  the  other,  having  any  direct  application  to  the  measure  of 


BLANCHARD  v.  ELY.  243 

damages  in  such  a  case  as  this,  nor  am  I  aware  that  any  exists.  If 
there  be  none,  it  is  somewhat  singular,  considering  the  many  con- 
tracts for  building  boats  and  other  vessels  which  must  have  been 
made  in  England  and  this  country.  We  have  to  regret  that  the  at- 
tention of  the  counsel  seemed  to  have  been  entirely  turned  from  the 
character  of  this  claim  in  the  abstract,  by  a  remark  of  the  judge 
implying  that  damages  for  loss  of  profits  were  admissible  in  a  cross 
action,  but  not  in  mitigation.  This  led  the  counsel  for  the  defend- 
ant to  stop  with  citing  Eeab  v.  McAllister  (8  Wend.  115),  to  show 
that  proof  of  any  damages  arising  from  a  plaintiffs  breach  of  the 
contract  upon  which  he  sues,  may  be  received  to  reduce  his  claim. 
This  we  all  understand  to  be  clearly  so.  The  counsel  for  the  defend- 
ant, too,  merely  thought  it  their  duty  to  cite  cases  showing  that  in 
an  action  on  a  warranty  of  land,  the  plaintiff  recovers  only  the  con- 
sideration money  paid,  with  interest  and  costs,  &c. ;  and  we  were 
reminded  particularly  of  one  reason  for  that  rule  as  given  by  Chief 
Justice  Savage,  in  Dimmick  v.  Lockwood  (10  Wend.  150),  viz. : 
"  That  it  would  be  ruinous  and  oppressive  to  make  the  seller  respond 
in  damages  for  any  accidental  rise  in  value  of  the  land,  or  the  in- 
creased value  in  consequence  of  the  improvements  by  the  purchaser." 
Tie,  at  the  same  time,  however,  notices  some  technical  reasons  for 
the  rule  which  render  it  less  decisive  in  respect  to  executory  con- 
tracts, especially  those  which  regard  personal  property.  The  prev- 
alence of  the  rule  is  very  extensive  in  its  application  to  covenants 
of  title  {vide  1  Selw.  N.  P.  533,  Phil.  ed.  1839).  The  rule  is  more 
pertinent  when  applied,  as  it  has  been  in  several  cases  to  the  breach 
by  failure  of  title  of  a  covenant  to  convey  (Baldwin  v.  Munn,  2 
Wend.  339).  Sutherland,  J.,  there  adopts  a  former  remark  of 
Chief  Justice  Kent,  importing  that  it  must  block  up  sales  of  real 
estate,  if  the  vendor  were  to  be  made  liable  in  proportion  to  the  rise 
of  property.  It  is  added  on  the  same  authority,  that  "the  safest 
rule  is  to  limit  the  recovery  as  much  as  possible  to  an  indemnity  for 
the  actual  injury  sustained,  without  regard  to  the  profits  the  plaintiff 
has  failed  to  make  "  (Id.  406).  This  was  A.  D.  1829.  As  long  ago 
as  1811,  in  Letcher  v.  Woodson  (1  Brock.  212),  Marshall,  Ch.  J., 
laid  down  the  rule  of  damages  on  a  similar  covenant,  in  nearly  the 
same  words  with  Mr.  Justice  Sutherland  (Combs  v.  Tarlton's 
Admr's,  2  Dana,  466,  Y,  S.  P.  A.  D.  1834).  This  rule  would  cut  off 
all  rise  of  the  value  intermediate  the  contract  and  time  fixed  for  its 
execution.  The  rule  on  agreement  to  sell  and  deliver  goods  is  uni- 
versally broader,  giving  the  vendee  advantage  of  the  rise  in  market, 
and  the  consequent  advantage  of  profit  on  any  sale  which  he  might 


244  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

have  made  at  the  time  stipulated  for  delivery,  or  whenever  it  be- 
comes due  (Smee  v.  Huddlestone,  Saver's  Dam.  49 ;  see  many  other 
cases  cited  in  Ch.  J.  Marshall's  note  to  Letcher  v.  Woodson,  1 
Brock.  218 ;  Clark  v.  Pinney,  7  Cow.  681,  687,  and  the  cases  there 
cited).  Nay  more,  under  circumstances,  the  rise  is  considered  even 
down  to  the  time  of  the  trial  (Id.)  The  rule  of  damages  in  respect 
to  contracts  for  the  sale  of  chattels  is  the  general  one,  and  some 
courts  have  refused  to  depart  from  it  in  measuring  damages  for 
breach  of  covenants  to  convey  real  estate  (Hopkins  v.  Lee,  6  Wheat. 
109,  117,  118;  Cannell  v.  McLean,  6  Har.  &  Johns.  297).  I  do  not 
dwell  upon  these  cases,  more  of  which  may  perhaps  be  found.  In 
both  classes,  the  courts  are  seeking  after  an  indemnity ;  that  is  to 
say,  making  good  to  the  vendee  what  he  has  paid  his  money  for. 
Both  classes  of  cases  profess  to  deny  the  allowance  of  damages 
remotely  consequential,  as  of  profits  resting  in  speculation.  The 
possible  or  even  probable  use  to  which  the  vendee  may  put  the 
property,  aside  from  a  market  sale,  is  clearly  excluded.  Going  upon 
analogy,  then,  suppose  the  owners  of  this  boat,  the  defendants,  had 
sold  out ;  in  the  absence  of  evidence  that  there  had  been  a  rise  of 
the  boat's  value  in  market,  we  must  take  the  stipulated  value  at 
which  it  was  to  be  built  (Bailey  v.  Clay,  4  Eand.  346),  and  then  the 
sum  which  would  command  the  materials  and  work  for  making  good 
the  defects  would  be  the  measure  of  damages  in  an  action,  or  by 
way  of  recoupment  in  a  defense.  In  like  manner,  a  contract  to  in- 
sure a  cargo  will  not,  in  the  event  of  loss,  carry  the  speculative 
profits  of  the  adventure,  though  these  may  be  insured  in  express 
terms,  even  by  an  open  policy  (1  Phil,  on  Ins.  320,  325  ;  Id.  46). 
Yet,  insurance  is  called  pre-eminently  a  contract  of  indemnity.  The 
damages  are  what  will  restore  the  value  of  the  cargo  on  shipboard 
at  the  port  of  departure  (Id.  46,  et  seq.)  The  rule  is  nearly  the 
same  in  resj)ect  to  damages  for  breach  of  warranty.  The  defect 
arising  from  the  vice  warranted  against,  must  be  made  good  in  such 
sense  that  the  article  shall  fetch  a  sound  price,  which  prima  facie 
we  have  seen  is  the  one  agreed  on  between  warrantor  and  warrantee 
(4  Kand.  ut  supra  ;  2  Leigh's  K  P.  Phil.  ed.  1838,  p.  1506).  Caveat 
emptor  in  search  of  a  horse  (1  Rural  Lib.  N".  Y.  No.  5,  for  1837, 
p.  140 ;  Clare  v.  Maynard,  7  Carr.  &  Payne,  741 ;  s.  o,  1  Nev.  & 
Perr.  701 ;  Chesterman  v.  Lamb,  4  Nev.  &  Mann.  195  ;  s.  c.  2  Ad. 
&  Ell.  129 ;  1  Selw.  N.  P.  ed.  before  cited,  p.  654,  tit.  Deceit,  I,  1, 
and  notes;  Bacon  v.  Brown,  4  Bibb,  91).  Yet,  in  all  the  cases  men- 
tioned, as  in  that  of  insurance,  there  is  no  doubt  that  by  an  express 
contract,  on  good  consideration,  the  vendor  may  stipulate  expressly 


BLANCIIARD  v.  ELY.  215 

to  indemnify  in  respect  to  loss  of  profits  arising  from  tlie  defect 
against  which  he  contracts.  In  short,  it  will  be  seen  by  the  cases 
cited,  and  many  more,  that  on  the  subject  in  cpiestion  our  courts  are 
more  and  more  falling  into  the  track  of  the  civil  law,  the  rule  of 
which  is  thus  laid  down  by  a  learned  writer :  "  In  general,  the  par- 
ties are  deemed  to  have  contemplated  only  the  damages  and  interest 
which  the  creditor  might  suffer  from  the  non-performance  of  the 
obligation  in  respect  to  the  particular  thing  which  is  the  object  of 
it ;  and  not  such  as  may  have  been  accidentally  occasioned  thereby 
in  respect  to  his  own  affairs"  (1  Evans'  Poth.  91,  London  ed.  1806). 
He  illustrates  the  rule  by  the  rise  of  value  in  goods  which  the 
promisor  fails  to  deliver.  He  adds,  if  the  lessor's  title  to  a  house 
fail,  he  is  bound  to  pay  to  his  lessee  the  expense  of  removal,  and 
indemnify  him  against  the  advance  of  rents,  but  not  against  the  loss 
of  custom  in  a  business  he  may  have  established  while  residing  in 
the  house.  He  also  adverts  to  the  distinction  that  the  vendor  may, 
notwithstanding,  incur  liability  for  extrinsic  damages  of  the  creditor, 
if  it  appear  they  were  stipulated  for  or  tacitly  submitted  to  in  the 
contract.  One  instance  is  that  of  stipulating  to  deliver  a  horse  in 
such  time  that  a  certain  advantage  may  be  gained  by  reaching  such 
a  place.  There  the  debtor  shall,  on  default,  pay  for  the  loss  of  the 
advantage.  The  case  of  tacit  submission  is  illustrated  by  a  case  of 
demising  premises  expressly  for  use  as  an  inn.  There,  if  the  tenant 
be  evicted,  a  loss  of  custom  may  be  taken  into  the  account  (Id.  91, 
92).  This  latter  rule  was  in  some  measure  acted  upon  in  the  late 
case  of  Driggs  v.  D wight  (17  Wend.  71).  There  was  a  promise  to 
demise  a  tavern  stand  at  a  day  certain,  which  was  refused  by  the 
promisor,  after  the  promisee  had  broken  up  his  former  residence, 
and  proceeded  with  a  view  to  take  possession.  We  allowed  to  the 
latter  damages  for  removing  his  family  and  furniture ;  in  this,  fol- 
lowing the  case  of  Ward  v.  Smith  (11  Price,  19).  In  Brackett  v. 
McNair  (14  Johns.  170),  the  broken  contract  was  to  transport 
goods  from  one  place  to  another,  and  the  increase  of  value  in  the 
goods  at  the  latter  place  was  allowed  as  damages ;  though  even  this 
principle  of  estimate  seems  to  have  been  denied  in  the  previous  case 
of  Smith  v.  Richardson  (3  Caines,  219).  In  another  case,  the  plaintiff 
sued  for  stone  delivered  to  be  used  in  building  a  church,  and  the 
defendants  claimed  a  recoupment,  because  they  had  not  been  deliv- 
ered at  the  day.  They  insisted  among  other  things,  on  damages,  by 
reason  of  their  workmen  lying  idle  for  want  of  the  material.  The 
court  did  not  deny  the  claim  absolutely,  but  held  that  the  defend- 
ants, even  if  the  delivery  had  been  stopped,  would  have  been  bound 


246  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

to  use  diligence  in  keeping  their  workmen  employed  on  other  ma- 
terials, to  be  supplied  as  soon  as  they  could  be  procured,  thus 
avoiding  all  unnecessary  loss,  and  that  the  deduction  must  be  gov- 
erned with  a  view  to  that  principle  (Miller  v.  Mariner's  Church,  7 
Greenl.  51,  55).  The  unreasonable  delay  of  workmen  stood  some- 
what on  the  footing  of  unreasonably  delaying  the  boat  in  this  case, 
which  the  judge  refused  to  allow,  though  he  directed  that  dam- 
ages might  be  due  for  taking  the  boat  to  a  proper  place  for  being 
repaired. 

But  to  go  the  length  insisted  upon  by  the  defendants  would,  I 
apprehend,  transgress  what  the  law  should  allow,  even  had  the 
plaintiff,  without  fraud,  tortiously  broken  the  machinery  of  this 
boat,  as  by  a  negligent  collision,  in  navigating  his  own  boat.  The 
profits  of  a  voyage  broken  up  are  constantly  denied  consideration, 
even  in  questions  relating  to  marine  trespasses  (The  Amiable  Nancy, 
3  Wheat.  546,  560,  and  the  cases  there  cited ;  La  Amistad  de  Rues, 
5  Id.  385,  389).  Of  course  I  lay  out  of  view,  as  do  all  the  cases, 
that  the  transaction  is  accompanied  with  wanton  outrage,  fraud  or 
gross  negligence  ;  the  cases  just  cited  from  Wheaton  show  that  these 
are  exceptions  (and  see  Merrils  v.  The  Tariff  Manufacturing  Co.  10 
Conn.  384).  The  case  of  De  Wint  v.  Wiltse  (9  Wend.  325), 
must,  I  think,  have  been  regarded  by  this  court  as  a  fraudulent 
breach  of  a  covenant  to  keep  a  ferry  in  repair,  which  materially 
benefited  the  plaintiff's  tavern.  The  defendant  left  it  unrepaired,  in 
order  to  favor  his  own  ferry.  Therefore  damages  were  allowed  for 
loss  of  custom  at  the  plaintiff's  inn.  Pothier,  as  before  cited,  main- 
tains the  same  distinction.  In  Nurse  v.  Barnes  (T.  Raym.  77),  the 
defendant,  in  consideration  of  £10,  promised  to  demise  a  mill  to  the 
plaintiff,  who  laid  in  a  large  stock  to  employ  it,  which  he  lost,  be- 
cause the  defendant  refused  to  let  him  have  possession.  The  jury 
were  held  properly  to  have  assessed  the  damages  at  £500.  Yery 
likely  it  appeared  that  the  breach  of  contract  was  committed  to  favor 
some  particular  interest  of  the  defendant  or  his  friend,  though  the 
case  mentions  a  simple  refusal  to  perform. 

The  case  at  bar,  so  far  as  I  have  been  enabled  to  discover  from 
the  evidence,  stands  entirely  clear  of  fraud.  If  some  of  the  iron 
used  for  shafts  was  rotten,  there  is  nothing  going  to  fix  knowledge, 
or  that  I  see,  gross  negligence  in  the  plaintiff  or  his  superintendent. 
The  extent  to  which  the  iron  proved  bad  was  doubtful,  though  the 
jury  were  authorized  to  infer  it  was  by  no  means  all  of  a  good 
quality.  There  is  no  proof,  however,  that  such  iron  was  used  inten- 
tionally ;  and  we  ought  not  to  infer  that  a  fraud  was  committed  by 


MASTERTON  v.  MAYOR  OF  BROOKLYN.  247 

any  one.  ]^o  new  trial  can,  therefore,  be  granted  on  any  error  of 
the  judge. 

Still,  we  think,  complete  justice  cannot  be  done  without  the 
cause  being  submitted  to  another  jury ;  for  the  plain  inference  is, 
that  they  totally  disallowed  anything  whatever  for  defects  in  the 
boat.  The  plaintiffs  counsel  make  a  computation  by  which  they 
show  that  $62  deduction  was  made ;  but  even  this  assumes  that  in- 
terest ran  on  the  balance  mentioned  in  the  assignment,  $4,524  66, 
from  the  first  of  May.  This  could  not  be  so.  All  parties  agreed 
that  the  boat  was  not  finally  completed  till  pretty  well  along  in 
July,  and  she  was  accepted  subject  to  completion.  At  most,  the  in- 
terest ought  not  to  run  till  after  the  job  was  finished.  It  is  sufficient 
to  say,  we  think,  there  is  a  strong  preponderance  of  evidence  in 
favor  of  some  deduction. 

New  trial  granted,  on  payment  of  costs. 


Sale  ;  Direct  Profits  ;  Profits  of  Collateral  Enterprises. 


SUPREME    COURT,    NEW    YORK. 
[1845.]      MASTERTOX  V.   MAYOR   OF   BROOKLYN   (7   Hill     61). 

Where  a  contract  has  been  made  by  A.  with  B.,  and  through  A.'s  action  B.  is  prevented 
from  realizing  the  proceeds  of  the  contract  at  the  time  stipulated,  any  profitable 
operation  or  bargain  which  B.  supposes  he  might  have  made  by  the  aid  of  such 
proceeds,  cannot  be  taken  into  account  in  ascertaining  his  damages.  Dependent  and 
collateral  engagements  entered  into  on  the  faith  and  in  expectation  of  the  perform- 
ance of  the  principal  contract,  are  too  remote  and  uncertain  to  be  considered  in  esti- 
mating the  true  measure  of  damages. 

But  profits  or  advantages  which  are  the  direct  and  immediate  fruits  of  the  contract  con- 
stitute a  portion  of  its  very  elements,  and  are  presumed  to  have  been  considered  be- 
fore it  was  made.  The  loss  of  such  profits  is  a  proper  item  in  determining  the  dam- 
ages. 

Where  an  article  has  no  market  value,  an  investigation  into  the  constituent  elements  of 
the  cost  to  the  party  who  contracted  to  furnish  it  becomes  necessary,  and  that  cost 
compared  with  the  contract  price  will  afford  the  measure  of  damages. 

Action  of  covenant,  tried  at  the  New  York  circuit  in  June,  1843. 

The  following  facts  appeared  on  the  trial :  On  the  26th  of  Jan- 
uary, 1836,  the  plaintiffs  covenanted  with  the  defendants  to  furnish 
all  the  marble  necessary  for  building  a  city  hall  in  the  city  of  Brook- 


248       CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

lyn ;  the  marble  was  to  be  of  a  stipulated  quality,  and  was  to  con- 
form to  drawings  and  plans  to  be  furnished  by  the  architect  or  su- 
perintendent of  the  building,  to  be  subject  to  his  approval,  and  de- 
livered at  the  site  of  the  building  at  such  times  as  he  should  direct. 
In  consideration  of  these  covenants  the  defendants  agreed  to  pay  the 
plaintiffs  the  sum  of  $271,600,  of  which  $240,000  was  to  be  paid  in 
different  instalments  at  successive  stages  of  the  work,  and  the  re- 
mainder when  the  building  should  be  completed. 

On  the  7th  of  March,  1836,  the  plaintiffs  contracted  with  Kain 
&  Morgan,  the  proprietors  of  a  marble  quarry,  for  all  the  marble 
necessary  for  the  building,  of  the  quality  required  by  the  plaintiffs' 
contract  with  the  defendants.  It  was  to  be  delivered  at  a  wharf  in 
Brooklyn  in  time  for  the  plaintiffs'  use  in  the  performance  of  their 
contract  with  the  defendants,  for  the  aggregate  sum  of  $112,395, 
payable  in  instalments  at  the  several  times  when  the  plaintiffs  should 
receive  their  money  from  the  defendants.  These  instalments  were 
to  bear  the  same  proportion  to  the  last  mentioned  sum  that  the  cor- 
responding payments  to  be  received  by  the  plaintiffs  from  the  de- 
fendants should  bear  to  the  whole  sum  the  plaintiffs  were  to  receive. 
It  was  further  agreed  by  Kain  &  Morgan's  contract  that  they  should 
not  .look  to  the  plaintiffs  or  hold  them  responsible  for  any  payment 
until  the  plaintiffs  should  first  have  been  enabled  to  make  such  pay- 
ment by  receiving  the  corresponding  instalment  due  them  from  the 
defendants. 

The  plaintiffs  claimed  damages  for  the  breach  in  1837  of  their 
contract  with  the  defendants,  and  also  special  damages. 

The  contract  with  Kain  &  Morgan  was  read  in  evidence  by  the 
plaintiffs,  subject  to  the  defendants'  right  to  object  to  its  admissi- 
bility during  the  course  of  the  trial.  The  plaintiffs  proved  that  they 
began  delivering  marble  pursuant  to  their  contract  with  the  defend- 
ants, and  continued  doing  so  till  July,  1837,  when  the  defendants 
stopped  the  construction  of  the  building  for  want  of  funds,  and  re- 
fused to  receive  any  more  marble,  though  the  plaintiffs  were  ready 
and  offered  to  deliver  it.  The  whole  amount  necessary  to  enable  the 
plaintiffs  to  fulfill  their  contract  was  88,819  feet.  At  the  time  when 
the  work  was  stopped  the  plaintiffs  had  delivered  14,779  feet,  for 
which  they  were  paid  at  the  agreed  rate.  The  plaintiffs  then  had  on 
hand,  at  Kain  &  Morgan's  quarry,  properly  prepared  and  ready  for 
delivery,  about  3,308  feet.  A  witness  testified  that  this  was  of  little 
value  for  other  purposes  than  the  one  for  which  it  had  been  pre- 
pared, and  would  probably  not  bring  more  than  two  shillings  a 
foot.     It  was  testified  by  other  witnesses  that,  with  ordinary  dili- 


MASTERTON   v.  MAYOR  OF  BROOKLYN.  249 

gence,  the  plaintiffs  would  have  required  about  five  years  to  finish 
their  contract.  Evidence  was  also  given  of  the  cost  of  the  marble  at 
the  quarry,  and  the  expense  of  preparing  and  transporting  it.  By 
permission  of  the  circuit  judge,  the  plaintiffs  proved,  under  the  de- 
fendants' objection,  the  difference  between  the  cost  to  them  of  the 
marble  in  the  contract,  and  the  price  to  be  paid  for  it  by  the  con- 
tract in  each  successive  year  from  1836  to  1840  both  inclusive.  It  was 
also  proved  by  the  plaintiffs,  under  the  defendants'  objection,  that 
the  ordinary  profit  calculated  by  master  stone-cutters  was  from  10  to 
15  per  cent.,  and  that  15  per  cent,  was  a  fair  "living"  profit. 

At  the  close  of  the  plaintiffs'  case  the  defendants'  counsel  moved 
to  exclude  the  contract  with  Kain  &  Morgan,  and  all  evidence  relat- 
ing to  it,  as  irrelevant,  but  the  circuit  judge  denied  the  motion,  and 
the  defendants'  counsel  excepted. 

The  circuit  judge  charged  the  jury  that  they  were  to  allow  the 
plaintiffs  as  much  for  the  performance  of  the  contract  as  it  would 
have  benefited  them  ;  that  the  plaintiffs  should  recover  for  the  un- 
finished marble  not  accepted,  deducting  its  fair  market  value ;  that 
the  jury  should  only  give  the  plaintiffs  damages  for  their  loss,  but 
that  the  benefits  or  profits  which  they  would  have  received  from  the 
actual  performance  constituted  such  loss.  He  further  charged  as 
follows : 

"  The  defendants  ought  to  be  allowed  what  the  jury  should  think 
just  as  to  interest  on  the  outlays  of  the  plaintiff ;  also  what  the  jury 
might  think  just  for  the  risk  of  transportation,  and  the  reasonable 
value  of  the  marble  unaccepted  and  unquarried.  As  to  damages  on 
the  rough  marble  to  be  delivered  by  Kain  &  Morgan,  it  appears  by 
the  contract  with  the  defendants  that  the  plaintiffs  were  obliged  to 
procure  it  from  this  quarry.  The  plaintiffs'  contract  with  Kain  <fc 
Morgan,  if  made  in  good  faith,  was  entered  into  as  a  reasonable  part 
of  the  performance  by  the  plaintiffs  of  their  own  contract ;  and  if 
the  defendants,  by  stopping  the  work,  obliged  the  plaintiffs  to  break 
their  contract  with  Kain  &  Morgan,  then  the  damages  on  the  latter 
ought  to  be  allowed  to  the  plaintiffs,  who  would  be  responsible  to 
Kain  &  Morgan  for  the  same.  The  jury,  in  respect  to  this  contract, 
are  to  give  the  difference  between  the  contract  price  and  what  it 
would  cost  Kain  &  Morgan  to  deliver  the  article,  deducting  the  value 
of  it  to  them,  and  making  all  proper  allowances  as  in  the  case  of  the 
principal  contract.  In  fixing  the  damages  to  be  allowed  the  plaint- 
iffs, the  jury  are  to  take  things  as  they  were  at  the  time  the  work- 
was  suspended,  and  not  allow  for  any  increased  benefits  they  would 
have  received  from  the  subsequent  fall  of  wages  or  subsequent  cir- 
cumstances," &c. 


250  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

The  defendants  excepted  to  the  charge,  and  asked  the  judge  to 
charge  that  the  plaintiffs  were  not  entitled  to  recover  for  any  sup- 
posed profits  which  they  might  have  made  out  of  the  unfinished 
work  ;  and  that  the  damages  should  be  confined  to  the  plaintiffs'  act- 
ual loss.  The  judge  refused  so  to  charge,  and  the  defendants' 
counsel  excepted. 

The  jury  having  found  a  verdict  for  the  plaintiffs  for  $72,999, 
the  defendants  moved  for  a  new  trial  on  a  bill  of  exceptions. 

Nelson,  Ch.  J. — The  damages  for  the  marble  on  hand,  ready  to 
be  delivered,  was  not  a  matter  in  dispute  on  the  argument.  The 
true  measure  of  allowance  in  respect  to  that  item  was  conceded  to 
be  the  difference  between  the  contract  price  and  the  market  value  of 
the  article  at  the  place  of  delivery.  This  loss  the  plaintiffs  had  act- 
ually sustained,  regard  being  had  to  their  rights  as  acquired  under 
the  contract. 

The  contest  arises  out  of  the  claim  for  damages  in  respect  to  the 
remainder  of  the  marble  which  the  plaintiffs  had  agreed  to  furnish, 
but  which  they  were  prevented  from  furnishing  by  the  suspension 
of  the  work  in  July,  1837.  This  portion  was  not  ready  to  be  de- 
livered at  the  time  the  defendants  broke  up  the  contract,  but  the 
plaintiffs  were  then  willing  and  offered  to  perform  in  all  things  on 
their  part,  and  the  case  assumes  that  they  were  possessed  of  sufficient 
means  and  ability  to  have  done  so. 

The  plaintiffs  insist  that  the  gains  they  would  have  realized,  over 
and  above  all  expenses,  in  case  they  had  been  allowed  to  perform 
the  contract,  enter  into  and  properly  constitute  a  part  of  the  loss  and 
damage  occasioned  by  the  breach  ;  and  they  were  accordingly  per- 
mitted, in  the  course  of  the  trial,  to  give  evidence  tending  to  show 
what  amount  of  gains  they  would  have  realized  if  the  contract  had 
been  carried  into  execution. 

On  the  other  hand,  the  defendants  say  that  this  claim  exceeds  the 
measure  of  damages  allowed  by  the  common  law  for  the  breach  of  an 
executory  contract.  They  insist  that  it  is  simply  a  claim  for  the 
profits  anticipated  from  a  supposed  good  bargain,  and  that  these  are 
too  uncertain,  speculative  and  remote  to  form  the  basis  of  a  recovery. 

It  is  not  to  be  denied  that  there  are  profits  or  gains  derivable 
from  a  contract  which  are  uniformly  rejected  as  too  contingent  and 
speculative  in  their  nature,  and  too  dependent  upon  the  fluctuation 
of  markets  and  the  chances  of  business,  to  enter  into  a  safe  or  rea- 
sonable estimate  of  damages.  Thus,  any  supposed  successful  opera- 
tion the  party  might  have  made,  if  he  had  not  been  prevented  from 
realizing  the  proceeds  of  the  contract  at  the  time  stipulated,  is  a  con- 


MASTERTON  v.  MAYOR  OF  BROOKLYN.  251 

sideration  not  to  be  taken  into  the  estimate.  Besides  the  uncertain 
and  contingent  issue  of  such  an  operation  in  itself  considered,  it  has 
no  legal  or  necessary  connection  with  the  stipulations  between  the 
parties,  and  cannot  therefore  be  presumed  to  have  entered  into  their 
consideration  at  the  time  of  contracting.  It  has  accordingly  been 
held  that  the  loss  of  any  speculation  or  enterprise  in  which  a  party 
may  have  embarked,  relying  on  the  proceeds  to  be  derived  from  the 
fulfillment  of  an  existing  contract,  constitutes  no  part  of  the  dam- 
ages to  be  recovered  in  case  of  breach.  So  a  good  bargain  made  by 
a  vendor,  in  anticipation  of  the  price  of  the  article  sold,  or  an  advan- 
tageous contract  of  resale  made  by  a  vendee,  confiding  in  the  vend- 
or's promise  to  deliver  the  article,  are  considerations  always  ex- 
cluded as  too  remote  and  contingent  to  affect  the  question  of  dam- 
ages (Clare  v.  Maynard,  6  Adol.  &  Ellis,  519,  and  Cox  v.  Walker,  in 
the  note  to  that  case ;  Walker  v.  Moore,  10  Barn.  &  Cress.  416 ; 
Cary  v.  Gruman,  4  Hill,  627,  628 ;  Chitty  on  Contr.  458,  870). 

The  civil  law  is  in  accordance  with  this  rule.  "  In  general,"  says 
Pothier,  "the  parties  are  deemed  to  have  contemplated  only  the 
damages  and  interest  which  the  creditor  might  suffer  from  the  non- 
performance of  the  obligation,  in  respect  to  the  particular  thing 
which  is  the  object  of  it,  and  not  such  as  may  have  been  incidentally 
occasioned  thereby  in  respect  to  his  other  affairs  ;  the  debtor  is 
therefore  not  answerable  for  these  ;  but  only  for  snch  as  are  suffered 
with  respect  to  the  thing  which  is  the  object  of  the  obligation, 
damni  et  interesse  ipsam  rem  non  habitant "  (1  Evans'  Poth.  91  ;  and 
see  Dom.  B.  3,  tit.  5,  §  2,  art.  3,  4,  5,  6). 

When  the  books  and  cases  speak  of  the  profits  anticipated  from  a 
good  bargain  as  matters  too  remote  and  uncertain  to  be  taken  into 
the  account  in  ascertaining  the  true  measure  of  damages,  they 
usually  have  reference  to  dependent  and  collateral  engagements  en- 
tered into  on  the  faith  and  in  expectation  of  the  peformance  of  the 
principal  contract.  The  performance  or  non-performance  of  the 
latter  may  and  doubtless  often  does  exert  a  material  influence  upon 
the  collateral  enterprises  of  the  party ;  and  the  same  may  be  said  as 
to  his  general  affairs  and  business  transactions.  But  the  influence  is 
altogether  too  remote  and  subtile  to  be  reached  by  legal  proof  or  ju- 
dicial investigation.  And  besides,  the  consequences,  when  injurious, 
are  as  often  perhaps  attributable  to  the  indiscretion  and  fault  of  the 
party  himself,  as  to  the  conduct  of  the  delinquent  contractor.  His 
condition,  in  respect  to  the  measure  of  damages,  ought  not  to  be 
worse  for  having  failed  in  his  engagement  to  a  person  whose  affairs 
were  embarrassed,  than  if  it  had  been  made  with  one  in  prosperous 
or  affluent  circumstances  (Dom.  B.  3,  tit.  5,  §  2,  art.  4). 


252       CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

But  profits  or  advantages  which  are  the  direct  and  immediate 
fruits  of  the  contract  entered  into  between  the  parties,  stand  upon  a 
different  footing.  These  are  part  and  parcel  of  the  contract  itself, 
entering  into  and  constituting  a  portion  of  its  very  elements  ;  some- 
thing stipulated  for,  the  right  to  the  enjoyment  of  which  is  just  as 
clear  and  plain  as  to  the  fulfillment  of  any  other  stipulation.  They 
are  presumed  to  have  been  taken  into  consideration  and  deliberated 
upon  before  the  contract  was  made,  and  formed  perhaps  the  only  in- 
ducement to  the  arrangement.  The  parties  may  indeed  have  enter- 
tained different  opinions  concerning  the  advantages  of  the  bargain, 
each  supposing  and  believing  that  he  had  the  best  of  it ;  but  this  is 
mere  matter  of  judgment  going  to  the  formation  of  the  contract,  for 
which  each  has  shown  himself  willing  to  take  the  responsibility  and 
must  therefore  abide  the  hazard. 

Such  being  the  relative  position  of  the  contracting  parties,  it  is 
difficult  to  comprehend  why,  in  case  one  party  has  deprived  the 
other  of  the  gains  or  profits  of  the  contract  by  refusing  to  perform 
it,  this  loss  should  not  constitute  a  proper  item  in  estimating  the 
damages.  To  separate  it  from  the  general  loss  would  seem  to  be 
doing  violence  to  the  intention  and  understanding  of  the  parties,  and 
severing  the  contract  itself. 

The  civil  law  writers  plainly  include  the  loss  of  profits,  in  cases 
like  the  present,  within  the  damages  to  which  the  complaining  party 
is  entitled.  They  hold  that  he  is  to  be  indemnified  for  "  the  loss  which 
the  non-performance  of  the  obligation  has  occasioned  him,  and  for 
the  gain  of  which  it  has  deprived  him  "  (1  Evans'  Poth.  90  ;  Dom.  B. 
3,  tit.  5,  §  2,  art.  6,  12).  And  upon  looking  into  the  common-law  au- 
thorities bearing  upon  the  question,  especially  the  later  ones,  they 
will  be  found  to  come  nearly,  if  not  quite  up,  to  the  rule  of  the  civil 
law. 

In  Boorman  v.  Nash  (9  Barn.  &  Cress.  145),  it  appeared  that  the 
defendant  contracted  in  November  for  a  quantity  of  oil,  one  half  to 
be  delivered  to  him  in  February  following,  and  the  rest  in  March ; 
but  he  refused  to  receive  any  part  of  it.  And  the  court  held  that 
the  plaintiff  was  entitled  to  the  difference  between  the  contract  price 
and  that  which  might  have  been  obtained  in  market  on  the  days 
when  the  contract  ought  to  have  been  completed  (see  M'Lean  v. 
Dunn,  4  Bing.  722).  The  case  of  Leigh  v.  Paterson  (8  Taunt.  540), 
was  one  in  which  the  vendor  was  sued  for  not  delivering  goods  on 
the  31st  of  December,  according  to  his  contract.  It  appeared  that, 
in  the  month  of  October  preceding,  he  had  apprised  the  vendee  that 
the  goods  would  not  be  delivered,  at  which  time  the  market  value 


MASTERTON  v.  MAYOR  OF  BROOKLYN.  253 

was  considerably  less  than  on  the  31st  of  December,  The  court  held 
that  the  vendee  had  a  right  to  regard  the  contract  as  subsisting  until 
the  31st  of  December,  if  he  chose,  and  recover  the  difference  be- 
tween the  contract  price  and  the  market  value  on  that  day  (see  also 
Gainsford  v.  Carroll,  2  Barn.  &  Cress.  62-A). 

The  above  are  cases,  it  will  be  seen,  in  which  the  profits  of  a  good 
bargain  were  regarded  as  a  legitimate  item  of  damages,  and  consti- 
tuted almost  the  only  ground  of  recovery.  And  it  appears  to  me 
that  we  have  only  to  apply  the  principle  of  these  cases  to  the  one  in 
hand,  in  order  to  determine  the  measure  of  damages  which  must  gov- 
ern it.  The  contract  here  is  for  the  delivery  of  marble,  wrought  in 
a  particular  manner,  so  as  to  be  fitted  for  use  in  the  erection  of  a 
certain  building.  The  plaintiffs'  claim  is  substantially  one  for  not 
accepting  goods  bargained  and  sold ;  as  much  so  as  if  the  subject- 
matter  of  the  contract  had  been  bricks,  rough  stone,  or  any  other  ar- 
ticle of  commerce  used  in  the  process  of  building.  The  only  diffi- 
culty or  embarrassment  in  applying  the  general  rule  grows  out  of  the 
fact  that  the  article  in  question  does  not  appear  to  have  any  well  as- 
certained market  value.  But  this  cannot  change  the  principle  which 
must  govern,  but  only  the  mode  of  ascertaining  the  actual  value  of 
the  article,  or  rather  the  cost  to  the  party  producing  it.  Where  the 
article  has  no  market  value,  an  investigation  into  the  constituent  ele- 
ments of  the  cost  to  the  party  who  has  contracted  to  furnish  it,  be- 
comes necessary  ;  and  that,  compared  with  the  contract  price,  will 
afford  the  measure  of  damages.  The  jury  will  be  able  to  settle  this 
upon  evidence  of  the  outlays,  trouble,  risk,  <fcc,  which  enter  into 
and  make  up  the  cost  of  the  article  in  the  condition  required  by  the 
contract,  at  the  place  of  delivery.  If  the  cost  equals  or  exceeds  the 
contract  price,  the  recovery  will  of  course  be  nominal ;  but  if  the 
contract  price  exceeds  the  cost,  the  difference  will  constitute  the 
measure  of  damages. 

It  has  been  argued  that,  inasmuch  as  the  furnishing  of  the  mar- 
ble would  have  run  through  a  period  of  five  years — of  which  about 
one  year  and  a  half  only  had  expired  at  the  time  of  the  suspension — 
the  benefits  which  the  party  might  have  realized  from  the  execution 
of  the  contract,  must  necessarily  be  speculative  and  conjectural,  the 
court  and  jury  having  no  certain  data  upon  which  to  make  the  esti- 
mate. If  it  were  necessary  to  make  the  estimate  upon  any  such 
basis,  the  argument  would  be  decisive  of  the  present  claim.  But  in 
my  judgment  no  such  necessity  exists.  Where  the  contract,  as  in 
this  case,  is  broken  before  the  arrival  of  the  time  for  full  perform- 
ance, and  the  opposite  party  elects  to  consider  it  in  that  light,  the 


254  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

market  price  on  the  clay  of  the  breach  is  to  govern  in  the  assessment 
of  damages.  In  other  words,  the  damages  are  to  be  settled  and  as- 
certained according  to  the  existing  state  of  the  market  at  the  time 
the  cause  of  action  arose,  and  not  at  the  time  fixed  for  full  perform- 
ance. The  basis  upon  which  to  estimate  the  damages,  therefore,  is 
just  as  fixed  and  easily  ascertained  in  cases  like  the  present,  as  in  ac- 
tions predicated  upon  a  failure  to  perform  at  the  day. 

It  will  be  seen  that  we  have  laid  altogether  out  of  view  the  sub- 
contract of  Kain  &  Morgan,  and  all  others  that  may  have  been  en- 
tered into  by  the  plaintiffs  as  preparatory  and  subsidiary  to  the  ful- 
fillment of  the  principal  one  with  the  defendants.  Indeed,  I  am  un- 
able to  comprehend  how  these  can  be  taken  into  the  account,  or  be- 
come the  subject-matter  of  consideration  at  all,  in  settling  the 
amount  of  damages  to  be  recovered  for  a  breach  of  the  principal 
contract.  The  defendants  had  no  control  over  or  participation  in 
the  making  of  the  sub-contracts,  and  are  certainly  not  to  be  com- 
pelled to  assume  them  if  improvidently  entered  into.  On  the  other 
hand,  if  they  were  made  so  as  to  secure  great  advantages  to  the 
plaintiffs,  surely  the  defendants  are  not  entitled  to  the  gains  which 
might  be  realized  from  them.  In  any  aspect,  therefore,  these  sub- 
contracts present  a  most  unfit  as  well  as  unsatisfactory  basis  upon 
which  to  estimate  the  real  damages  and  loss  occasioned  by  the  de- 
fault of  the  defendants.  The  idea  of  assuming  that  the  plaintiffs 
were  necessarily  compelled  to  break  all  their  sub-contracts,  as  a  con- 
sequence of  the  breach  of  the  principal  one,  and  that  the  damages  to 
which  they  may  thus  be  subjected  ought  to  enter  into  the  estimate 
of  the  amount  recoverable  against  the  defendants,  is  too  hypothetical 
and  remote  to  lead  to  any  safe  or  equitable  result.  And  yet,  the 
fact  that  these  sub-contracts  must  ordinarily  be  entered  into  prepara- 
tory to  the  fulfillment  of  the  principal  one,  shows  the  injustice  of 
restricting  the  damages,  in  cases  like  the  present,  to  compensation 
for  the  work  actually  done,  and  the  item  of  materials  on  hand.  "We 
should  thus  throw  the  whole  loss  and  damage  that  would  or  might 
arise  out  of  contracts  for  further  materials,  &c,  entirely  upon  the 
party  not  in  fault. 

If  there  was  a  market  value  of  the  article  in  this  case,  the  ques- 
tion would  be  a  simple  one.  As  there  is  none,  however,  the  parties 
will  be  obliged  to  go  into  an  inquiry  as  to  the  actual  cost  of  furnish- 
ing the  article  at  the  place  of  delivery  ;  and  the  court  and  jury  should 
see  that  in  estimating  this  amount,  it  be  made  upon  a  substantial 
basis,  and  not  left  to  rest  upon  the  loose  and  speculative  opinions  of 
witnesses.     The  constituent  elements  of  the  cost  should  be  ascer- 


MASTERTON  v.  MAYOR  OF  BROOKLYN.  255 

tained  from  sound  and  reliable  sources ;  from  practical  men,  having 
experience  in  the  particular  department  of  labor  to  which  the  con- 
tract relates.  It  is  a  very  easy  matter  to  figure  out  large  profits  upon 
paper ;  but  it  will  be  found  that  these,  in  a  great  majority  of  the 
cases,  become  seriously  reduced  when  subjected  to  the  contingencies 
and  hazards  incident  to  actual  performance.  A  jury  should  scrutin- 
ize with  care  and  watchfulness  any  speculative  or  conjectural  ac- 
count of  the  cost  of  furnishing  the  article  that  would  result  in  a  very 
unequal  bargain  between  the  parties,  by  which  the  gains  and  bene- 
fits, or,  in  other  words,  the  measure  of  damages  against  the  defend- 
ants, are  unreasonably  enhanced.  They  should  not  overlook  the 
risks  and  contingencies  which  are  almost  inseparable  from  the  exe- 
cution of  contracts  like  the  one  in  question,  and  which  increase  the 
expense  independently  of  the  outlays  in  labor  and  capital. 

These  views,  it  will  be  seen,  when  contrasted  with  the  law  as  ex- 
pounded and  applied  by  the  circuit  judge,  necessarily  lead  to  the 
granting  of  a  new  trial. 

Beaedsley,  J. — The  circuit  judge  clearly  erred  in  that  part  of  his 
charge  to  the  jury  which  related  to  the  contract  of  the  plaintiffs  with 
Kain  &  Morgan.  No  damages  are  allowable  on  account  of  this  con- 
tract, nor  am  I  able  to  see  how  it  can  be  regarded  as  relevant  evi- 
dence upon  any  disputed  point  connected  with  the  amount  for  which 
the  defendants  are  liable. 

The  main  question  in  the  case  arises  out  of  the  claim  of  the 
plaintiffs  in  respect  to  that  portion  of  their  contract  with  the  de- 
fendants which  remained  wholly  unexecuted  in  July,  1837.  I  think 
the  plaintiffs  are  entitled  to  recover  the  amount  they  would  have  re- 
alized as  profits  had  they  been  allowed  fully  to  execute  their  con- 
tract. The  defendants  are  not  to  gain  by  their  wrongful  act,  nor  is 
that  to  deprive  the  plaintiffs  of  the  advantages  they  had  secured  by 
the  contract,  and  which  would  have  resulted  to  them  from  its  per- 
formance. The  jury  must  therefore  ascertain  what  it  would  prob- 
ably have  cost  them  to  complete  the  contract,  over  and  above  the  ma- 
terials on  hand  ;  including  the  value  of  the  marble  required,  the  la- 
bor of  quarrying  and  preparing  it  for  use,  the  expense  of  transporta- 
tion, superintendence,  and  insurance  against  all  hazards,  together 
with  every  other  expense  incident  to  the  fulfillment  of  the  under- 
taking. The  aggregate  of  these  expenditures  is  to  be  deducted  from 
the  amount  which  would  be  payable  for  the  performance  of  this  part 
of  the  contract,  according  to  the  prices  therein  stipulated,  and  the 
balance  will  be  the  damages  which  the  jury  should  allow  for  the  item 
under  consideration. 


256       CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

Remote  and  contingent  damages,  depending  on  the  result  of  suc- 
cessive schemes  or  investments,  are  never  allowed  for  the  violation 
of  any  contract.  But  profits  to  be  earned  and  made  by  the  faithful 
execution  of  a  fair  contract  are  not  of  this  description.  A  right  to 
damages  equivalent  to  such  profits  results  directly  and  immediately 
from  the  act  of  the  party  who  prevents  the  contract  from  being  per- 
formed. 

Where  a  vendor  has  agreed  to  sell  and  deliver  personal  property 
at  a  particular  day,  and  fails  to  perform  his  contract,  the  vendee  may 
recover  in  damages  the  difference  between  the  contract  price  and  the 
market  value  of  the  property  at  the  time  when  it  should  have  been 
delivered  (Chit,  on  Contr.  5th  Am.  ed.  445 ;  Dey  v.  Dox,  9  Wend. 
129  ;  Gainsford  v.  Carroll,  2  Barn.  &  Cress.  624  ;  Shepperd  v.  Hamp- 
ton, 3  Wheat.  200  ;  Quarles  v.  George,  20  Pick.  400 ;  Shaw  v.  INudd, 
8  Id.  9  ;  2  Phill.  Ev.  104).  So,  if  a  person  who  has  agreed  to  pur- 
chase goods  at  a  certain  price  refuses  to  receive  them,  he  must  pay 
the  difference  between  their  market  value  and  the  enhanced  price 
which  he  contracted  to  pay  (2  Stark.  Ev.  7th  Am.  ed.  1201  ;  Boor- 
man  v.  Nash,  9  Barn.  &  Cress.  145). 

These  principles  are  strictly  applicable  to  the  present  case.  In 
reason  and  justice  there  can  be  no  difference  between  the  damages 
which  should  be  recovered  for  the  breach  of  an  ordinary  agreement 
to  buy  or  sell  goods,  and  one  to  procure  building  materials,  fit  them 
for  use,  and  deliver  them  in  a  finished  state,  at  a  stipulated  price.  In 
neither  case  should  the  wrong-doer  be  allowed  to  profit  by  his  wrong- 
ful act.  The  party  who  is  ready  to  perform  is  entitled  to  a  full  in- 
demnity for  the  loss  of  his  contract.  He  should  not  be  made  to  suf- 
fer by  the  delinrpiency  of  the  other  party,  but  ought  to  recover  pre- 
cisely what  he  would  have  made  by  performance.  This  is  as  sound 
in  morals  as  it  is  in  law  (Shannon  v.  Comstock,  21  Wend.  461 ;'  Mil- 
ler v.  Mariner's  Church,  7  Greenl.  51 ;  Shaw  v.  Nudd,  8  Pick.  13 ; 
Swift  v.  Barnes,  16  Id.  196  ;  Royalton  v.  The  Royalton  &  Wood- 
stock Turnpike  Co.  14  Yt.  311). 

The  plaintiffs  were  not  bound  to  wait  till  the  period  had  elapsed 
for  the  complete  performance  of  the  agreement,  nor  to  make  succes- 
sive offers  of  performance,  in  order  to  recover  all  their  damages. 
They  might  regard  the  contract  as  broken  up,  so  far  as  to  absolve 
them  from  making  further  efforts  to  perform  and  give  them  a  right 
to  recover  full  damages  as  for  a  total  breach.  I  am  not  prepared  to 
say  that  the  plaintiffs  might  not  have  brought  successive  suits  on  this 
covenant,  had  they  from  time  to  time  made  repeated  offers  to  per- 
form on  their  part,  which  were  refused  by  the  defendants  :  but  this 
the  plaintiffs  were  not  bound  to  do. 


MASTERTON  v.  MAYOR  OF  BROOKLYN.  257 

There  can  be  no  serious  difficulty  in  assessing  damages  according 
to  the  principles  which  have  been  stated.  The  contract  was  made  in 
1836  ;  and,  according  to  the  testimony,  about  five  years  would  have 
been  a  reasonable  time  for  its  execution.  That  time  has  gone  by. 
The  expense  of  executing  the  contract  must  necessarily  depend  upon 
the  prices  of  labor  and  materials.  If  prices  fluctuated  during  the 
period  in  question,  that  may  be  shown  by  testimony.  In  this  re- 
spect there  is  no  need  of  resorting  to  conjecture,  for  all  the  data 
necessary  to  form  a  correct  estimate  of  the  entire  expense  of  execut- 
ing the  contract  can  now  be  furnished  by  witnesses. 

If  the  cause  had  been  brought  to  trial  before  the  time  for  com- 
pleting the  contract  expired,  it  would  have  been  impracticable  to 
make  an  accurate  assessment  of  the  damages.  This  is  no  reason, 
however,  why  the  injured  party  should  not  have  his  damages,  al- 
though the  difficulty  in  making  a  just  assessment  in  such  a  case  has 
been  deemed  a  sufficient  ground  for  decreeing  specific  performance 
(Adderly  v.  Dixon,  1  Sim.  &  Stu.  607,  and  the  cases  there  cited).  In 
Eoyalton  v.  The  Royalton  &  Woodstock  Turnpike  Co.  (14  Yt.  311, 
324),  an  action  was  brought  on  a  contract  which  had  about  twelve 
years  to  run.  And  the  court  held,  in  granting  a  new  trial,  that  the 
rule  of  damages  "  should  have  been  to  give  the  plaintiffs  the  differ- 
ence between  what  they  were  to  pay  the  defendants,  and  the  prob- 
able expense  of  performing  the  contract ;  and  thus  assess  the  entire 
damages  for  the  remaining  twelve  years."  No  rule  which  will  be 
absolutely  certain  to  do  justice  between  the  parties  can  be  laid  down 
for  such  a  case.  Some  time  must  be  taken  arbitrarily  at  which 
prices  are  to  be  ascertained  and  estimated  ;  and  the  day  of  the  breach 
of  the  contract,  or  of  the  commencement  of  the  suit,  should  j)erhaps 
be  adopted  under  such  circumstances.  But  we  need  not,  in  the 
present  case,  express  any  opinion  on  that  point.  No  conjectural  es- 
timate is  required  to  ascertain  what  would  have  been  the  expense  of 
a  complete  execution  of  this  contract ;  but  the  state  of  the  market,  in 
respect  to  prices,  is  now  susceptible  of  explicit  and  intelligible  proof. 
And  where  that  is  so,  it  seems  to  me  unsuitable  to  adopt  an  arbitrary 
period,  especially  as  the  estimate  of  damages  must,  in  any  event,  be 
somewhat  conjectural. 

I  think  the  defendants  are  entitled  to  a  new  trial,  and  that  the 
damages  should  be  assessed  upon  the  principles  stated. 

Bronson,  J. — As  the  marble  had  no  market  value,  the  question  of 

profits  involves  an  inquiry  into  the  cost  of  the  rough  material  in  the 

quarry,  and  the  expense  of  raising,  dressing,  and  transporting  it  to 

the  place  of   delivery.     There  may   have  been  fluctuations  in  the 

17 


258  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

prices  of  labor  and  materials  between  the  day  of  the  breach  and  the- 
time  when  the  contract  was  to  have  been  fully  performed,  and  this 
makes  the  question  upon  which  my  brethren  are  not  agreed.  I  con- 
cur in  opinion  with  the  chief  justice,  that  such  fluctuations  in  prices 
should  not  be  taken  into  the  account  in  ascertaining  the  amount  of 
damages,  but  that  the  court  and  jury  should  be  governed  entirely  by 
the  state  of  things  which  existed  at  the  time  the  contract  was  broken. 
This  is  the  most  plain  and  simple  rule  :  it  will  best  preserve  the 
analogies  of  the  law,  and  will  be  as  likely  as  any  other  to  do  sub- 
stantial justice  to  both  parties. 
New  trial  granted. 

Note. — See  Dunn  v.  Johnson,  33  Ind.  54. 


Contract  to  Build  and  Deliver  Ship  by  a  Certain  Date  ;  Profits. 


COURT    OF    COMMON    PLEAS. 

[1855.]  Fletcher  v.  Tayleur  (17  C.  B.  21). 

In  an  action  for  the  non-completion  of  a  ship  pursuant  to  a  contract,  the  jury  having 
given  by  way  of  damages  the  difference  between  the  net  freight  which  the  vessel 
probably  would  have  earned  had  she  been  ready  at  the  time  stipulated,  and  the 
amount  actually  earned  by  her  when  delivered  some  months  later,  when  freights  in 
the  particular  trade  were  lower — no  question  having  been  raised  at  the  trial  as  to 
the  principle  upon  which  the  damages  ought  to  have  been  assessed — the  court 
refused  to  disturb  their  verdict. 

Qucere,  as  to  the  proper  mode  of  estimating  damages  for  the  breach  of  a  contract  for  the 
delivery  of  a  chattel  ? 

This  was  an  action  to  recover  damages  for  the  breach  of  a  con- 
tract for  the  building  of  a  ship. 

The  declaration  stated,  that,  before  the  commencement  of  this 
suit,  it  was  agreed  between  the  plaintiffs  and  defendant,  that  the 
defendant  should  build  for  the  plaintiffs  a  new  iron  ship  of  the  same 
size  and  dimensions  and  model  as  the  second  iron  ship  then  in  course 
of  construction  for  Messrs.  C.  Moore  &  Co.,  and  contracted  for  on 
the  17th  of  March  then  last  past,  and  in  accordance  with  a  certain 
specification  then  agreed  on,  and  should  deliver  the  said  ship  to  the 
plaintiffs,  at  the  latest,  by  the  1st  of  August,  1851,  and  that  the 
plaintiffs  should  pay  to  the  defendant  for  the  said  ship  the  sum  of 
11,612£.  17«.  Qd.,  less  2?  for  the  hundred,  in  the  following  payments, 


FLETCHER   v.   TAYLEUR.  259 

that  is  to  say — one-eighth,  when  stem  and  stern-post  up — one-eighth, 
when  framed — one-fourth,  when  plated  up  to  gunwale,  and  beams 
secured — one-fourth,  when  all  decks  are  laid,  and  poop,  &c,  plated 
and  riveted — and  one-fourth  when  completely  finished  and  delivered : 
Breach,  that,  although  the  plaintiffs  made  all  payments,  and  per- 
formed all  things  on  their  part  by  the  said  agreement  to  be  per- 
formed, yet  the  defendant  did  not  deliver  the  said  ship  to  the 
plaintiffs  finished  according  to  the  contract  and  specification,  nor 
did  he  deliver  the  same  until  long  after  the  first  of  August,  185-1 ; 
whereby  the  plaintiffs  were  deprived  of  and  lost  great  profits  and 
gains  which  would  otherwise  have  accrued  to  them  from  the  use  of 
the  said  ship,  and  also  from  the  employment  of  her  in  the  Australian 
trade,  in  which  trade  it  was  intended  by  the  plaintiffs  she  should  be 
employed,  and  of  which  the  defendant  before  and  at  the  time  of 
making  the  said  agreement  had  notice :  and  the  plaintiffs  sued  the 
defendant  for  money  had  and  received  by  the  defendant  for  the  use 
of  the  plaintiffs,  and  for  money  found  to  be  due  from  the  defendant 
to  the  plaintiffs  on  accounts  stated  between  them. 

The  defendant  pleaded,  amongst  other  pleas,  a  denial  of  the  con- 
tract alleged  in  the  declaration. 

The  cause  was  tried  before  Ceowdee,  J.,  at  the  last  assizes  at 
Liverpool.  The  facts  which  appeared  in  evidence  were  as  follows  : 
The  plaintiffs  were  shipowners  at  Liverpool.  The  defendant  was  an 
iron  ship  builder  carrying  on  business  at  Warrington  under  the  style 
of  "  The  Bank  Quay  Foundry  Company ; "  and  the  action  was  brought 
to  recover  damages  for  the  non-delivery  of  an  iron  ship,  to  be  called 
"  The  Startled  Fawn,"  which  the  defendant  had  undertaken  to  build 
for  the  plaintiffs,  under  the  following  contract  : 

"  Hull,  mast,  and  spar  contract. 

"Messrs.  The  Bank  Quay  Foundry  Company,  of  Warrington, 
hereby  contract  with  Messrs.  Partridge,  Fletcher  &  Co.,  of  Liver- 
pool, to  build  a  new  iron  ship  of  the  same  size,  dimensions,  and 
model,  and  according  to  the  same  specification,  and  subject  to  all 
the  same  conditions,  as  the  second  iron  ship  contracted  for  by  the 
said  Bank  Quay  Foundry  Company  with  Charles  Moore  &  Co.,  and 
dated  17th  March,  1853,  excepting  the  larboard  strake  to  be  only  fth 
inch,  instead  of  fth  inch ;  but  all  the  other  plate  the  same. 

"  The  dimensions  of  the  above  ship  are,  cVrc. 

"  The  price  to  be  14,612?.  17s.  6d.,  less  a  discount  of  2 k  per  cent. 
Payments — one-eighth,  when  stem  and  stern-post  up — one-eighth, 
when  framed — one-quarter,  when  plated  up  to  gunwale,  and  beams 
secured — one-quarter  when  all  decks  are  laid,  and  poop,  &c.,  plated 
and  riveted — and  one-quarter,  when  completely  finished  and  delivered. 


260       CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

"  The  masts  to  be  either  built  of  iron,  with  mid-feather  right  up, 
of  such  diameter  as  purchasers  may  desire,  or  to  be  substantially 
built  of  pitch-pine,  at  their  option. 

"  The  tanks  to  hold  5,000  gallons,  in  place  of  4,500  gallons. 

"  The  ship  to  be  completely  delivered  at  the  latest  by  the  1st  day 
of  August,  1854. 

"  This  contract  is  subject  to  a  condition,  that,  in  case  any  acci- 
dent happens  to  the  ship  '  Tayleur,'  in  launching  or  bringing  down 
the  river,  so  as  to  prevent  the  Bank  Quay  Foundry  Company  from 
building  vessels  of  this  size  at  their  works  at  Warrington,  then  this 
contract  to  be  null  and  void. 

"Dated  at  Liverpool,  this  3d  day  of  September,  1853." 

A  detailed  specification  was  on  the  13th  of  November  signed  by 
the  plaintiffs  and  by  one  Charles  Heathcote,  the  manager  of  the  Bank 
Quay  Foundry  Company,  on  behalf  of  the  defendant.  The  specifi- 
cation contained  the  following  provisions  : 

"  The  ship  to  be  built  under  the  superintendence  and  direction  of 
Mr.  Grindrod,  and  his  views  to  be  fully  carried  out  in  all  respects ; 
and  any  alterations  he  may  consider  an  improvement  on  this  specifi- 
cation, to  be  done  without  any  extra  charge,  provided  it  does  not 
cost  more ;  and  the  work  and  materials  to  be  subject  to  the  approval 
of  the  purchasers. 

"  The  ship  to  be  built  of  the  very  best  Staffordshire  iron ;  and 
such  parts  as  Mr.  Grindrod  may  point  out,  to  be  made  of  best  scrap 
or  Low  Moor  iron,  either  of  which  he  may  demand ;  and  anything 
objected  to  by  him  to  be  immediately  exchanged." 

The  vessel  was  intended  by  the  plaintiffs — and,  from  the  nature 
of  her  fittings,  the  defendant  must  have  known  the  fact — for  a  pas- 
senger ship  in  the  Australian  trade. 

On  the  28th  of  March,  1854,  the  defendant  addressed  the  follow- 
ing letter  to  the  plaintiffs  : 

"We  are  making  every  exertion  to  push  on  the  work  for  your 
vessel.  We  had  intended  to  have  laid  her  down  on  the  blocks  of 
Messrs.  Moore's  ship,  '  The  Golden  Yale,'  when  launched :  but  we 
have  been  unfortunately  so  much  delayed  with  her,  that,  were  we  to 
wait  until  she  is  launched,  your  ship  would  be  kept  back  much  too 
long ;  and  we  have  therefore  determined  to  lay  her  down  at  once. 
The  unforeseen  circumstances  which  have  delayed  '  The  Golden 
Vale'  will,  we  much  fear,  cause  some  delay  in  the  delivery  of  your 
ship.  This  we  should  much  regret  on  every  account ;  and  you  may 
rely  on  our  doing  all  we  can  to  expedite  it.  If  you  could  extend  the 
time  of  delivery,  say  two  months,  thus  giving  us  seven  months  from 


FLETCHER   v.   TAYLEUB.  261 

this  time,  yon  would  be  conferring  a  great  favor  on  us.  We  shall 
be  glad  to  hear  from  you  on  this." 

To  this  the  plaintiffs  replied  on  the  29th,  as  follows : 

"  We  have  received  your  letter  of  yesterday,  and  are  glad  to  learn 
that  you  have  now  arranged  to  lay  down  our  new  ship  forthwith ; 
for,  we  cannot  sufficiently  impress  upon  you  how  important  it  is  to 
us  that  no  time  should  be  lost,  as,  in  the  present  uncertain  state  of 
affairs,  we  may  look  for  a  serious  depreciation  in  the  value  of  ships, 
at  any  time. 

"  As  regards  an  extension  of  time  for  two  months  beyond  that 
stipulated  for,  we  should  be  glad  to  hear  whether,  if  we  consented 
to  it,  you  would  limit  yourselves  to  the  end- of  September,  under  a 
demurrage  of  so  much  each  day,  as  really  from  that  time  days  would 
be  shortening  so  fast  that  we  should  be  seriously  inconvenienced  and 
prejudiced  in  fitting  the  vessel  out. 

"  "We  trust  you  will  see  the  necessity  of  employing  as  many  men 
as  possible  to  push  the  work  forward." 

On  the  30th  the  defendant  wrote  to  the  plaintiffs  as  follows : 

"  We  are  obliged  for  your  letter  of  the  29th  instant ;  and,  in 
reference  to  the  delivery  of  your  vessel,  you  will  observe  we  ask  for 
seven  months  from  present  time,  under  the  impression  that  we  had 
five  months ;  and  are  sorry  that  we  cannot  expect  to  be  ready  in  less 
than  the  time  asked  for.  We  must  decline  undertaking  any  liability 
as  to  demurrage,  on  the  same  grounds  that  we  refused  at  the  time 
the  contract  was  made.  But  our  going  to  the  expense  of  laying 
down  an  extra  pair  of  ways  must  be  the  best  assurance  of  our  en- 
deavors to  meet  your  wishes." 

The  vessel  not  being  in  so  forward  a  state  as  she  should  have 
been,  the  plaintiffs  towards  the  end  of  July  wrote  to  the  defendant 
intimating  that  they  would  hold  him  responsible  for  any  damage 
they  might  sustain  from  her  non-completion  by  the  time  stipulated 
in  the  contract. 

The  vessel  was  not  delivered  to  the  plaintiffs  until  March,  1S55. 

There  was  evidence  to  show  that  freights  to  Australia  were  very 
high  in  the  months  of  July,  August,  and  September,  1854;  but  that, 
in  October,  they  began  to  decline,  and  continued  low  until  May, 
1855,  when  the  ship  sailed.  The  witnesses  called  on  the  part  of  the 
plaintiffs  stated  that  the  vessel  would  in  all  probability  have  ob- 
tained, if  completed  by  the  time  mentioned  in  the  contract,  at  the 
then  current  rates,  an  outward  freight  of  about  7,000/.,  and  a  gross 
freight  home  of  about  9,500/.,  and  that,  allowing  for  the  necessary 
outlay  and  expenses,  the  profit  would  in  all  probability  have  been  a 


262      CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

sum  somewhat  exceeding  7,0001.  The  amount  of  freight  received 
by  the  plaintiffs,  when  the  ship  sailed,  in  May,  1855,  was  4,280Z. 

The  payments,  it  appeared,  had  not  been  made  by  the  plaintiffs 
at  the  time  stipulated  for  by  the  contract — 3,6001.  only  having  been 
paid  by  the  1st  of  August,  1854,  and  6,800/.  only  up  to  March,  1855, 
and  the  residue  in  April. 

In  leaving  the  case  to  the  jury,  the  learned  judge,  without  any 
objection  on  the  part  of  the  counsel  on  either  side,  left  the  question 
of  damages  to  them  in  the  following  terms  :  "  In  order  that  you  may 
be  under  no  mistake  as  to  the  principle  on  which  you  are  to  calcu- 
late the  damages,  I  will  state  to  you,  as  it  has  been  laid  down  before,* 
.  and  indeed  as  both  the  counsel  have  agreed  upon,  that,  where  two 
parties  have  made  a  contract,  which  one  of  them  has  broken,  the 
damages  which  the  other  party  ought  to  receive  in  respect  of  such 
breach  of  contract  should  be  such  as  may  fairly  and  reasonably  be 
considered  either  arising  naturally,  that  is,  according  to  the  usual 
course  of  things,  from  such  breach  of  contract  itself,  or  such  as  may 
reasonably  be  supposed  to  have  been  in  the  contemplation  of  both 
parties  at  the  time  they  made  the  contract,  as  the  probable  result  of 
the  breach  of  it." 

The  jury  returned  a  verdict  for  the  plaintiffs,  damages  2,7501. 

Hugh  Hill  now  moved  for  a  new  trial,  on  the  ground  that  the 
damages  were  excessive.  The  jury  have  evidently  estimated  the 
damages  upon  an  erroneous  and  mistaken  principle.  They  have 
given  the  plaintiffs  the  difference  between  what  it  might  be  pre- 
sumed the  vessel  would  have  earned  if  she  had  been  ready  to  pro- 
ceed to  Australia  at  the  time  she  ought  by  the  terms  of  the  contract 
to  have  been  completed,  when  freights  were  high,  and  the  amount 
actually  earned  by  her  when  she  did  sail :  whereas,  it  is  manifest 
from  the  plaintiffs'  letter  of  the  29th  of  March,  1854,  that  they  were 
willing  to  extend  the  time  for  the  completion  of  the  vessel  until  the 
end  of  September,  if  the  defendant  would  have  consented  to  the 
condition  as  to  demurrage  after  that  date ;  and  therefore,  if  the  ves- 
sel had  been  delivered  by  the  1st  of  October,  1854,  the  jury  clearly 
would  not  have  been  justified  in  giving  the  amount  of  damages 
they  have  given ;  and  yet  the  data  on  which  they  have  proceeded 
existed  as  much  on  that  day  as  at  the  time  of  her  actual  delivery. 
[Jervis,  C.  J. — It  wTould  be  extremely  convenient  if  there  were  some 
general  rule  as  to  the  measure  of  damages  applicable  to  all  cases  of 
breach  of  contract,  rather  than  that  the  matter  should  be  left  at 

*  Referring  to  the  case  of  Hadley  v.  Baxendale,  9  Excli.  341,  which  had  been  cited. 


FLETCHER   v.   TAYLEUR.  263 

large.  May  it  not  be  that  the  breach  of  a  mercantile  contract  may 
be  susceptible  of  estimation  according  to  the  average  percentage  of 
mercantile  profits  ?  Is  not  that  to  some  extent  the  result  of  Hadley 
v.  Baxendale  ?]  In  that  view,  it  might  be  material  to  bear  in  mind 
the  periods  at  which  the  installments  of  the  purchase  money  for  this 
vessel  were  paid.  More  than  half  the  amount  was  actually  in  the 
plaintiffs'  hands  at  the  time  she  was  completed  and  delivered  to 
them.  [Crowder,  J. — In  Alder  v.  Keighley,  16  M.  &  W.  117,  the 
Court  of  Exchequer  lay  it  down  as  a  clear  rule,  "  that  the  amount 
which  would  have  been  received  if  the  contract  had  been  kept  is  the 
measure  of  damages  if  the  contract  is  broken."  I  cannot  say  that 
the  damages  in  this  case  have  been  calculated  on  a  false  principle. 
The  jury  properly  took  into  their  consideration  the  fact  that  vessels 
in  the  Australian  trade  were  very  much  in  request  at  the  time  this 
vessel  should  have  been  completed.]  The  verdict  is  for  a  very  large 
amount,  and  it  is  at  least  extremely  doubtful  whether  the  jury  have 
not  been  misled  by  the  evidence  as  to  the  probable  profits  of  such  a 
voyage  as  that  contemplated. 

Jervis,  C.  J. — I  think  there  ought  to  be  no  rule  in  this  case. 
The  amount  of  the  verdict  clearly  can  be  no  ground  for  our  inter- 
ference :  that  must  in  all  cases  dej>end  upon  the  magnitude  of  the 
claim.  The  question  was  entirely  and  properly  left  to  the  jury, 
both  parties  having  agreed  that  the  question  for  their  consideration 
was,  what  was  the  loss  in  fact  sustained  by  the  ship's  not  having 
been  delivered  by  the  stipulated  day  ?  The  other  point  was  not  sug- 
gested— perhaps  because  it  is  an  erroneous  view — and  therefore  \ve 
are  not  now  called  upon  to  decide  it. 

Crowder,  J.* — I  am  of  the  same  opinion.  The  question  as  to 
the  amount  and  the  mode  of  estimating  the  damages  was  very  fully 
gone  into.  The  evidence  upon  the  subject  was  that  of  mercantile 
men,  peculiarly  conversant  with  the  matter :  and  the  jury  was  a 
special  jury  of  Liverpool  merchants,  than  whom  none  could  be 
more  fit  to  decide  such  a  question.  And  I  must  say  that  I  do  not 
consider  the  amount  excessive. 

Willes,  J. — I  am  of  the  same  opinion,  though  I  am  not  prepared 
to  say  that  the  view  suggested  by  my  lord,  in  the  course  of  the 
argument,  is  erroneous.  It  certainly  is  very  desirable  that  these 
matters  should  be  based  upon  certain  and  intelligible  principles,  and 
that  the  measure  of  damages  for  the  breach  of  a  contract  for  the 
delivery  of  a  chattel  should  be  governed  by  a  similar  rule  to  that 

*  Williams,  J.,  was  absent. 


264  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

wliicli  prevails  in  the  case  of  a  breach  of  a  contract  for  the  payment 
of  money.  No  matter  what  the  amount  of  inconvenience  sustained 
by  the  plaintiff,  in  the  case  of  nonpayment  of  money,  the  measure 
of  damages  is  the  interest  of  the  money  only :  and  it  might  be  a 
convenient  rule,  if,  as  suggested  by  my  lord,  the  measure  of  dam- 
ages in  such  a  case  as  this  was  held  by  analogy  to  be  the  average 
profit  made  by  the  use  of  such  a  chattel.  That  question,  however, 
was  not  made  at  the  trial.  Both  parties  seem  to  have  agreed  that 
the  amount  of  damages  was  purely  a  question  for  the  jury.  Evi- 
dence was  given  of  the  difference  of  the  value  of  the  voyage  at  the 
time  the  vessel  ought  to  have  been  delivered  to  the  plaintiffs,  and  at 
the  time  when  she  was  actually  delivered,  and  no  evidence  was 
offered  on  the  part  of  the  defendant  to  show  that  this  was  at  all 
exaggerated.  And,  indeed,  if  the  damages  ought  to  have  been  com- 
puted according  to  the  principle  suggested,  it  seems  to  me  that  no 
injustice  has  been  done,  for  the  sum  the  jury  have  given  is  not  in 
that  point  of  view  extravagantly  large.  I  therefore  think  there  is 
no  ground  for  our  interference. 
Rule  refused. 

Note. — A.  contracted  with  B.  to  build  a  steamboat,  and  have  it  completed  at 
a  certain  time.  The  price  was  to  be  paid  in  installments.  The  vessel  was  not 
delivered  until  two  months  after  the  agreed  time,  but  B.  made  no  objections  at 
the  time  of  delivery.  In  an  action  by  A.  for  that  part  of  the  purchase  money 
which  remained  unpaid,  it  was  held  that  B.  could  not  recoup  the  amount  which 
he  lost  as  freight  during  the  two  months,  because  the  damages  were  speculative 
(Taylor  v.  Maguire,  12  Mo.  313;  see  Singer  v.  Farnsworth,  1  Carter,  484). 

Upon  the  breach  of  a  contract  for  the  delivery  of  merchandise,  the  plaintiff  is 
not  entitled  to  recover  damages  for  delay  in  business  caused  by  the  non-delivery 
of  the  articles ;  nor  for  expenses  incurred  in  attempting  to  procure  them,  nor  for 
speculative  profits  (Porter  v.  Wood,  3  Humph.  56). 

In  an  action  for  damages  for  not  furnishing  machinery  for  a  steam  mill  at  the 
stipulated  time,  the  plaintiff  cannot  recover  in  damages  the  estimated  value  of 
the  profits  he  might  have  made  if  the  contract  had  been  complied  with.  Dam- 
ages should  be  allowed  upon  the  principle  of  a  reasonable  r?nt  and  insurance  for 
the  building,  and  the  actual  loss  by  decay  of  the  materials,  during  the  period  he 
was  prevented  from  commencing  his  operations  by  reason  of  the  defendant's 
default  in  not  complying  with  his  covenant  (M'Boyle  v.  Reeder,  1  Iredell,  607). 

In  an  action  for  the  breach  of  an  executory  contract  to  make  and  put  up  cer- 
tain machinery,  the  plaintiff  is  entitled  to  recover  any  expenses  which  he  has 
actually  incurred  in  his  business  as  a  consequence  of  the  failure  of  the  defendant 
to  perform  his  contract,  but  not  for  estimated  profits  upon  articles  to  be  manu- 
factured by  means  of  such  machinery  (Freeman  v.  Clute,  3  Barb.  424). 


PORTMAN   v.    MIDDLETOX.  2t>5 


Contract  to  repair  Threshing  Machine  in  time  for  Harvest 
Remote  and   Special  Damages. 


COURT  OF  COMMON  PLEAS. 

[1858.]         Portman  V.  MlDDLETON  (4  C.  B.  K  S.  322). 

A.  contracted  with  B.  to  repair  a  steam  threshing  machine,  undertaking  to  get  it  ready 
for  harvest  time.  A  new  fire  box  being  needed,  C.  engaged  to  make  one  for  A.  "  in 
about  a  fortnight,"  but  failed  in  the  performance  of  his  contract,  and  A.  (who  had 
paid  C.  for  the  article)  was  obliged  to  get  one  made  elsewhere,  at  an  additional  cost ; 
but  this  he  did  not  do  in  time  to  enable  him  to  perform  his  contract  with  B.  (al- 
though there  was  ample  time  for  him  to  have  done  so  after  C.  had  broken  his  con- 
tract); whereupon  B.  sued  A.,  who  paid  him  20/.  to  settle  the  action:  Held,  that  A. 
was  entitled  to  recover  from  C.  the  sum  he  had  paid  him  for  the  fire  box,  and  the 
extra  cost  incurred  in  getting  another ;  but  that  the  compensation  paid  by  A.  to  B. 
was  not  such  a  damage  "as  might  fairly  and  reasonably  be  considered  either  as 
arising  naturally  from  C.'s  breach  of  contract,  or  such  as  might  reasonably  be  sup- 
posed to  have  been  in  the  contemplation  of  the  parties,  at  the  time  they  made  the 
contract,  as  the  probable  result  of  the  breach  of  it," — within  the  rule  in  Hadley  v. 
Baxendale  (9  Exch.  341). 

This  was  an  action  for  a  breach  of  contract  in  not  delivering:  a 
fire  box  within  the  time  stipulated. 

The  declaration  stated  that  the  plaintiff,  before  the  time  of  the 
making  of  the  agreement  with  the  defendant  thereinafter  mentioned, 
had  been  employed  by  a  certain  person  to  repair  and  put  in  order 
for  him  a  steam  threshing  engine,  the  said  engine  to  be  finished:  and 
delivered  to  the  said  person  by  a  certain  specified  time,  at  and  on 
certain  reward  to  be  paid  to  the  plaintiff  by  the  said  person  ;  and 
thereupon  the  plaintiff  retained  and  employed  the  defendant  to  make 
or  repair  for  him  a  fire  box  for  the  said  steam  threshing  engine  of  a 
certain  size,  and  according  to  certain  instructions  given  to  the  de- 
fendant by  the  plaintiff,  and  by  a  time  agreed  upon  between  the 
plaintiff  and  the  defendant,  which  said  retainer  the  defendant  ac- 
cepted at  and  for  the  sum  of  12/.,  and  which  said  sum  the  plaintiff 
paid  to  the  defendant  before  the  delivery  by  the  defendant  of  the 
fire  box  thereinafter  mentioned  :  Averment,  that  although  the  de- 
fendant had  delivered  a  fire  box  as  and  for  the  fire  box  so  agreed  to 
be  made  or  repaired  by  him  for  the  plaintiff,  yet  he  did  not  do  the 
same  by  the  time  agreed  upon  between  the  plaintiff  and  the  defend- 
ant, nor  according  to  the  said  instructions  of  the  plaintiff,  but  wholly 
neglected  and  disobeyed  the  same  instructions ;  and  although,  when 


266  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

the  plaintiff  so  employed  the  defendant  to  make  or  repair  the  said 
fire  box,  he  informed  the  defendant  for  what  purpose  he  required 
the  same,  and  of  what  size  and  materials  the  same  must  be,  and  by 
what  time  the  plaintiff  had  contracted  with  the  said  person  to  finish 
and  deliver  the  said  steam  threshing  machine,  and  which  said  time 
had  long  elapsed  ;  yet  the  defendant  had  made  and  delivered  to  the 
plaintiff  a  fire  box  unsuited  to  and  unfit  for  the  said  steam  threshing 
engine,  imperfect  in  materials,  and  different  in  size  from  the  fire  box 
agreed  to  be  made  by  the  defendant,  and  wholly  useless  to  the  plaint- 
iff, and  that  the  defendant  had  refused  to  make  a  fire  box  fit  for  the 
steam  threshing  engine,  or  to  return  the  said  sum  of  121.  to  the 
plaintiff ;  whereby  the  plaintiff  had  not  only  lost  the  said  sum  of 
12,1.  so  paid  by  him  to  the  defendant,  but  had  incurred  great  expense 
in  and  about  constructing  a  fit  and  proper  fire  box  for  the  said  steam 
threshing  engine,  and  was  also  liable  to  make  compensation  to  the 
said  person  for  the  delay  in  delivering  the  said  steam  threshing  ma- 
chine to  him,  such  delay  being  caused  by  the  wrongful  conduct  of 
the  defendant. 

There  were  also  counts  for  money  payable  by  the  defendant  to 
the  plaintiff,  and  for  money  received  by  the  defendant  to  the  use  of 
the  plaintiff. 

The  defendant  traversed  the  retainer  and  the  alleged  breaches 
of  contract,  and  also  pleaded  never  indebted  ;  whereupon  issue  was 
joined. 

The  cause  was  tried  before  Channell,  B.,  at  the  last  assizes  at 
Worcester.  The  facts  were  as  follows :  In  the  spring  of  1857,  the 
plaintiff,  an  engineer,  was  employed  by  one  Sheaf  to  repair  a  steam 
threshing  engine ;  the  work  to  be  finished  before  harvest,  or  by  the 
end  of  July  or  the  beginning  of  August.  It  being  found  necessary 
to  get  a  new  fire  box  made,  the  plaintiff  in  June  went  to  the  defend- 
ants at  Birmingham  and  verbally  contracted  with  them  to  make  one 
for  him  for  121.  Upon  inquiring  how  long  it  would  take  to  make 
it,  the  defendants'  foreman  answered,  "About  a  fortnight."  The 
fire  box  was  not  sent  to  the  plaintiff  until  the  3d  of  September,  when 
it  was  found  to  be  useless.  The  plaintiff  was  then  obliged  to  employ 
another  person  to  make  another  fire  box,  for  which  he  had  to  pay 
201.  The  threshing  engine,  in  consequence  of  these  delays,  not  being 
ready  until  November,  Sheaf  brought  an  action  against  the  plaintiff 
to  recover  damages  in  respect  of  his  breach  of  contract,  claiming 
501. ;  but  he  ultimately  settled  the  matter  by  accepting  201.  and 
costs,  making  together  251.  17s. 

It  did  not  appear  that  the  plaintiff,  when  he  gave  the  defendants 


PORTMAN   v.   MIDDLETON.  267 

the  order  for  the  fire  box,  communicated  to  them  the  nature  of  his 
contract  with  Sheaf  ;  or  that  they  were  made  aware  of  it  until  after 
there  had  been  a  complete  breach  of  that  contract ;  although  there 
was  some  evidence  of  a  conversation  between  Sheaf  and  the  defend- 
ants upon  the  subject  in  the  month  of  June. 

Under  the  direction  of  the  learned  Baron,  the  jury  returned  a 
verdict  for  the  plaintiff  for  the  121.  which  he  had  paid  the  defend- 
ants for  the  fire  box,  8/.  for  the  extra  expenses  he  had  incurred  in 
procuring  another,  and  201.  in  respect  of  the  compensation  he  had 
paid  to  Sheaf  for  the  non-performance  of  his  contract  with  him. 
A  rule  nisi  having  been  obtained  and  argued, 
Crowder,  J.,  now  delivered  the  judgment  of  the  court : 
This  case  was  argued  on  Friday  last  before  my  brothers  Willes 
and  Byles  and  myself.  The  rule  sought  to  reduce  the  damages : 
and  we  are  of  opinion  that  it  must  be  made  absolute.  The  action 
was  brought  to  recover  damages  for  the  breach  of  a  contract  entered 
into  between  the  plaintiff  and  the  defendant,  under  which  the  de- 
fendant was  to  furnish  a  fire  box  for  the  plaintiff  by  a  given  time. 
The  article  was  not  furnished  within  the  time,  and  when  it  was  sent 
to  the  plaintiff,  it  was  found  to  be  utterly  useless.  The  plaintiff, 
who  had  paid  the  sum  agreed  on,  viz.  121.,  sought  to  recover  back 
that  sum,  together  with  the  damages  which  he  had  sustained  by  rea- 
son of  the  defendants'  breach  of  contract.  The  jury  gave  a  verdict 
for  121.,  the  sum  paid,  and  a  further  sum  of  8/.  for  the  extra  ex- 
pense which  the  plaintiff  was  put  to  in  procuring  another  fire  box, 
and  about  which  there  is  no  dispute.  They  also  gave  a  further  sum 
of  201.  as  special  damage  arising  from  the  defendants'  breach  of  con- 
tract. The  question  is  whether  the  jury  were  warranted  in  giving 
this  latter  sum.  "We  are  of  opinion  that  they  were  not.  The  special 
damage  was  sought  to  be  recovered  by  reason  of  the  plaintiff's  hav- 
ing entered  into  a  contract  with  one  Sheaf  to  repair  for  him  a  steam 
threshing  machine.  The  contract  between  the  plaintiff  and  the  de- 
fendants as  to  the  fire  box  was  quite  separate  and  distinct  from  that. 
The  defendants  had  nothing  whatever  to  do  with  the  contract  be- 
tween Sheaf  and  the  plaintiff.  But  it  was  said  that,  inasmuch  as 
Sheaf  had  brought  an  action  against  the  plaintiff  for  his  breach  of 
contract — a  breach  of  contract  occasioned  by  the  insufficiency  of  the 
article  furnished  by  the  defendant — and  had  recovered  damages  (or 
been  paid  a  sum  of  201.)  for  the  breach  of  that  contract,  that  was  a 
damage  which  the  plaintiff  was  entitled  to  recover  against  the  de- 
fendants for  the  breach  of  their  contract.  We  think,  however,  that 
this  case  is  entirely  governed  by  that  of  Hadley  v.  Baxendale  (9 


268  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

Excli.  341),  to  which  reference  was  made,  and  does  not  come  within 
that  rule  by  which  alone  this  sum  could  be  recovered  as  special  dam- 
age. It  is  laid  down  by  the  Court  of  Exchequer,  in  Hadley  v.  Bax- 
endale,  that  "  where  two  parties  have  made  a  contract  which  one  of 
them  has  broken,  the  damages  which  the  other  party  ought  to  re- 
ceive, in  respect  of  such  breach  of  contract,  should  be  such  as  may 
fairly  and  reasonably  be  considered  either  arising  naturally,  that  is, 
according  to  the  usual  course  of  things,  from  such  breach  of  con- 
tract itself,  or  such  as  may  reasonably  be  supposed  to  have  been  in 
the  contemplation  of  both  parties,  at  the  time  they  made  the  con- 
tract, as  the  probable  result  of  the  breach  of  it."  Xow,  it  is  quite 
clear  that  this  special  damage  was  not  the  ordinary  consequence  of 
the  breaking  of  the  defendants'  contract.  The  only  question  was, 
whether  it  came  within  the  second  part  of  the  rule  as  above  laid 
down — that  the  breach  of  contract  was  such  as  that  the  damage 
arising  from  it  might  be  supposed  to  be  in  the  contemplation  of  both 
parties  at  the  time  they  made  the  contract.  We  have  looked  care- 
fully at  the  notes  of  the  learned  judge  who  tried  the  cause,  and  we 
cannot  find  that  there  is  any  such  evidence  as  would  lead  to  the  con- 
clusion that  it  was  in  the  contemplation  of  the  parties  that  the  breach 
of  the  contract  entered  into  between  the  plaintiff  and  Sheaf,  and  the 
damages  recovered  by  him  (Sheaf)  in  consequence,  would  be  the 
probable  result  of  the  breach  by  the  defendants  of  their  contract  to 
furnish  a  fire  box  to  the  plaintiff.  We  therefore  think  that  the  rule 
to  reduce  the  damages  should  be  made  absolute  :  and  we  cannot  help 
thinking — the  action  being  brought  to  recover  back  the  sum  of  12/., 
the  amount  agreed  to  be  paid  for  the  fire  box — that  it  would  be  a 
monstrous  conclusion  to  arrive  at,  that  the  breach  of  the  contract  in 
not  furnishing  the  article  contracted  for  at  that  price,  should  give 
rise  to  the  additional  damages  of  20/.  here  sought  to  be  recovered. 

DO 

Rule  absolute. 


GRIFFIN  v.  COLVER.  269 


Contract  to  Deliver  an  Engine  for  a  specific  Purpose  ;  General 
Rule  of  Damages  for  Breach  of  Contract. 


COURT   OF   APPEALS,    NEW    YORK. 

[1858.]  Griffin  v.  Colter  (16  N.  Y.  489). 

It  is  a  well-established  rule  of  the  common  law  that  the  damages  to  be  recovered  for  a 
breach  of  contract  must  be  shown  with  certainty ;  and  it  is  under  this  rule  that 
profits  are  excluded  from  the  estimate  of  damages  in  such  cases,  and  not  because 
there  is  anything  in  their  nature  which  should  per  se  prevent  their  allowance.  Profits 
which  would  certainly  have  been  realized  but  for  the  defendant's  default,  are  recov- 
erable ;  those  which  are  speculative  cr  contingent,  and  which  cannot  fairly  be  con- 
sidered as  having  been  within  the  contemplation  of  the  parties  at  the  time  of  entering 
into  the  contract,  are  not. 

Appeal  from  a  judgment  entered  in  the  Supreme  Court  on  the 
report  of  a  referee. 

The  plaintiffs  had  agreed  to  deliver  to  the  defendants,  by  a  stip- 
ulated day,  a  steam  engine  intended,  as  they  knew,  to  drive  certain 
machinery  for  the  sawing  and  planing  of  lumber.  The  engine  was  not 
delivered  till  a  week  after  the  day  fixed.  In  this  action,  which  was 
brought  for  the  price  of  the  engine,  the  defendants  recouped  the 
damages  sustained  by  them  as  a  consequence  of  the  delay,  and  on  the 
trial  proved  that  the  net  average  value  of  the  engine,  at  the  time 
and  place  and  for  the  purpose  intended,  was  $50  a  day,  beyond  the 
wear  and  tear  of  the  machinery,  and  the  cost  of  running  it.  This 
result  was  obtained  by  a  calculation  of  the  wear  and  tear  of  the  ma- 
chinery, of  the  cost  of  running  it,  and  of  the  amount  of  lumber  it 
would  saw  and  plane  in  a  day,  together  with  the  prices  which  the 
defendants  received  for  the  sawing  and  planing.  The  referee  re- 
fused to  allow  damages  on  this  basis,  but  reported  that  $50  was  a 
proper  compensation  to  the  defendants  "  upon  their  investment,  or 
the  value  of  the  property  which  was  partially  unoccupied  by  reason 
of  the  plaintiff's  default."  This  finding  was  excepted  to,  and  the 
judgment  on  the  report  was  affirmed  by  the  general  term  of  the 
Supreme  Court. 

The  opinion  of  the  Court  of  ApjDeals  was  delivered  by 

Selden,  J. — The  only  point  made  by  the  appellants  is  that,  in  es- 
timating their  damages  on  account  of  the  plaintiff's  failure  to  furnish 
the  engine  by  the  time  specified  in  the  contract,  they  should  have 
been  allowed  what  the  proof  showed  they  might  have  earned  by  the 
use  of  such  engine,  together  with  their  other  machinery,  during  the 
time  lost  by  the  delay.     This  claim  was  objected  to,  and  rejected 


270  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

upon  the  trial,  as  coming  within  the  rule  which  precludes  the  allow- 
ance of  profits,  by  way  of  damages,  for  the  breach  of  an  executory 
contract. 

To  determine  whether  this  rule  was  correctly  applied  by  the 
referee,  it  is  necessary  to  recur  to  the  reason  upon  which  it  is 
founded.  It  is  not  a  primary  rule,  but  is  a  mere  deduction  from 
that  more  general  and  fundamental  rule  which  requires  that  the 
damages  claimed  should  in  all  cases  be  shown,  by  clear  and  satisfac- 
tory evidence,  to  have  been  actually  sustained.  It  is  a  well-estab- 
lished rule  of  the  common  law  that  the  damages  to  be  recovered  for 
a  breach  of  contract  must  be  shown  with  certainty,  and  not  left  to 
speculation  or  conjecture  ;  and  it  is  under  this  rule  that  profits  are 
excluded  from  the  estimate  of  damages  in  such  cases,  and  not  be- 
cause there  is  anything  in  their  nature  which  should  per  se  prevent 
their  allowance.  Profits  which  would  certainly  have  been  realized 
but  for  the  defendant's  default  are  recoverable ;  those  which  are 
speculative  or  contingent  are  not. 

Hence,  in  an  action  for  the  breach  of  a  contract  to  transport 
goods,  the  difference  between  the  price  at  the  point  where  the  goods 
are  and  that  to  which  they  were  to  be  transported,  is  taken  as  the 
measure  of  damages  ;  and  in  an  action  against  a  vendor  for  not  de- 
livering the  chattels  sold,  the  vendee  is  allowed  the  market  price 
upon  the  day  fixed  for  the  delivery.  Although  this,  in  both  cases, 
amounts  to  an  allowance  of  profits,  yet,  as  those  profits  do  not 
depend  upon  any  contingency,  their  recovery  is  permitted.  It  is 
regarded  as  certain  that  the  goods  would  have  been  worth  the  estab- 
lished market  price,  at  the  place  and  on  the  day  when  and  where 
they  should  have  been  delivered. 

On  the  other  hand,  in  cases  of  illegal  capture,  or  of  the  insur- 
ance of  goods  lost  at  sea,  there  can  be  no  recovery  for  the  probable 
loss  of  profits  at  the  port  of  destination.  The  principal  reason  for 
the  difference  between  these  cases  and  that  of  the  failure  to  trans- 
port goods  upon  land  is,  that,  in  the  latter  case,  the  time  when  the 
goods  should  have  been  delivered,  and  consequently  that  when  the 
market  price  is  to  be  taken,  can  be  ascertained  with  reasonable  cer- 
tainty ;  while,  in  the  former,  the  fluctuation  of  the  markets  and  the 
contingencies  affecting  the  length  of  the  voyage  render  every  calcu- 
lation of  profits  speculative  and  unsafe. 

There  is  also  an  additional  reason,  viz.,  the  difficulty  of  obtaining 
reliable  evidence  as  to  the  state  of  the  markets  in  foreign  ports ;  that 
these  are  the  true  reasons  is  shown  by  the  language  of  Mr.  Justice 
Stoey,  in  the  case  of  the  Schooner  Lively  (1  Gallis.  315),  which  was 


GRIFFIN  v.  COLVER.  271 

a  case  of  illegal  capture.  He  says  :  "  Independent,  however,  of  all 
authority,  I  am  satisfied  upon  principle  that  an  allowance  of  dam- 
ages, upon  the  basis  of  a  calculation  of  profits,  is  inadmissible.  The 
rule  would  be  in  the  highest  degree  unfavorable  to  the  interests  of 
the  community.  The  subject  would  be  involved  in  utter  uncer- 
tainty. The  calculation  would  proceed  upon  contingencies,  and 
would  require  a  knowledge  of  foreign  markets  to  an  exactness  in 
point  of  time  and  value  which  would  sometimes  present  embarrass- 
ing obstacles.  Much  would  depend  upon  the  length  of  the  voyage, 
and  the  season  of  the  arrival,  much  upon  the  vigilance  and  activity 
of  the  master,  and  much  upon  the  momentary  demand.  After  all,  it 
would  be  a  calculation  upon  conjectures  and  not  upon  facts." 

Similar  language  is  used  in  the  cases  of  the  Amiable  Xancy  (3 
Wheat.  546)  and  L'Amistad  de  Rues  (5  Wheat.  385).  Indeed,  it  is 
clear  that  whenever  profits  are  rejected  as  an  item  of  damages,  it  is 
because  they  are  subject  to  too  many  contingencies,  and  are  too  de- 
pendent upon  the  fluctuations  of  markets  and  the  chances  of  busi- 
ness, to  constitute  a  safe  criterion  for  an  estimate  of  damages.  This  is 
to  be  inferred  from  the  cases  in  our  own  courts.  The  decision  in  the 
case  of  Blanchard  v.  Ely  (21  Wend.  342)  must  have  proceeded  upon 
this  ground,  and  can,  as  I  apprehend,  be  supported  upon  no  other.  It 
is  true  that  Judge  Cowen,  in  giving  his  opinion,  quotes  from  Pothier 
the  following  rule  of  the  civil  law,  viz. :  "  In  general,  the  parties  are 
deemed  to  have  contemplated  only  the  damages  and  injury  which 
the  creditor  might  suffer  from  the  non-performance  of  the  obliga- 
tions in  respect  to  the  particular  thing  which  is  the  object  of  it,  and 
not  such  as  may  have  been  accidentally  occasioned  thereby  in  respect 
to  his  own  (other)  affairs."  But  this  rule  had  no  application  to  the 
case  then  before  the  court.  It  applies  only  to  cases  where,  by  reason 
of  special  circumstances  having  no  necessary  connection  with  the 
contract  broken,  damages  are  sustained  which  would  not  ordinarily 
or  naturally  flow  from  such  breach :  as  where  a  party  is  prevented 
by  the  breacli  of  one  contract  from  availing  himself  of  some  other 
collateral  and  independent  contract  entered  into  with  other  parties, 
or  from  performing  some  act  in  relation  to  his  own  business  not 
necessarily  connected  with  the  agreement.  An  instance  of  the  latter 
kind  is  where  a  canon  of  the  church,  by  reason  of  the  non-delivery 
of  a  horse  pursuant  to  agreement,  was  prevented  from  arriving  at 
his  residence  in  time  to  collect  his  tithes. 

In  such  cases  the  damages  sustained  are  disallowed,  not  because 
they  are  uncertain,  nor  because  they  are  merely  consequential  or  re- 
mote, but  because  they  cannot  be  fairly  considered  as  having  been 


272  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

within  the  contemplation  of  the  parties  at  the  time  of  entering  into 
the  contract.  Hence  the  objection  is  removed,  if  it  is  shown  that 
the  contract  was  entered  into  for  the  express  purpose  of  enabling  the 
party  to  fulfill  his  collateral  agreement,  or  perform  the  act  supposed 
(Seclg.  on  Dam.  ch.  3). 

In  Blanchard  v.  Ely  the  damages  claimed  consisted  in  the  loss  of 
the  use  of  the  very  article  which  the  plaintiff  had  agreed  to  con- 
struct ;  and  were,  therefore,  in  the  plainest  sense,  the  direct  and 
proximate  result  of  the  breach  alleged.  Moreover,  that  use  was 
contemplated  by  the  parties  in  entering  into  the  contract,  and  con- 
stituted the  object  for  which  the  steamboat  was  built.  It  is  clear, 
therefore,  that  the  rule  of  Pothier  had  nothing  to  do  with  the  case. 
Those  damages  must  then  have  been  disallowed,  because  they  con- 
sisted of  profits  depending,  not,  as  in  the  case  of  a  contract  to  trans- 
port goods,  upon  a  mere  question  of  market  value,  but  upon  the 
fluctuations  of  travel  and  of  trade,  and  many  other  contingencies. 
The  citation,  by  Judge  Cowen,  of  the  maritime  cases  to  which  I 
have  referred,  tends  to  confirm  this  view.  This  case,  therefore,  is  a 
direct  authority  in  support  of  the  doctrine  that  whenever  the  profits 
claimed  depend  upon  contingencies  of  the  character  referred  to,  they 
are  not  recoverable. 

The  case  of  Masterton  v.  The  Mayor,  &c.  of  Brooklyn  (7  Hill, 
61)  decides  nothing  in  opposition  to  this  doctrine.  It  simply  goes 
to  support  the  other  branch  of  the  rule,  viz.,  that  profits  are  allowed 
where  they  do  not  depend  upon  the  chances  of  trade,  but  upon  the 
market  value  of  goods,  the  price  of  labor,  the  cost  of  transportation, 
and  other  questions  of  the  like  nature,  which  can  be  rendered  reason- 
ably certain  by  evidence. 

From  these  authorities  and  principles  it  is  clear  that  the  defend- 
ants were  not  entitled  to  measure  their  damages  by  estimating  what 
they  might  have  earned  by  the  use  of  the  engine  and  their  other 
machinery  had  the  contract  been  complied  with.  Nearly  every  ele- 
ment entering  into  such  a  computation  would  have  been  of  that  un- 
certain character  which  has  uniformly  prevented  a  recovery  for 
speculative  profits. 

But  it  by  no  means  follows  that  no  allowance  could  be  made  to 
the  defendants  for  the  loss  of  the  use  of  their  machinery.  It  is  an 
error  to  suppose  that  "the  law  does  not  aim  at  complete  compensa- 
tion for  the  injury  sustained,"  but "  seeks  rather  to  divide  than  satisfy 
the  loss"  (Sedg.  on  Dam.  ch.  3).  The  broad,  general  rule  in  such 
cases  is,  that  the  party  injured  is  entitled  to  recover  all  his  damages, 
including  gains  prevented  as  well  as  losses  sustained  ;  and  this  rule 


GRIFFIN  v.  COLVER.  273 

is  subject  to  but  two  conditions.  The  damages  must  be  sucb  as  may 
fairly  be  supposed  to  have  entered  into  the  contemplation  of  the 
parties  when  they  made  the  contract,  that  is,  must  be  such  as  might 
naturally  be  expected  to  follow  its  violation  ;  and  they  must  be  cer- 
tain, both  in  their  nature  and  in  respect  to  the  cause  from  which 
they  proceed.. 

The  familiar  rules  on  the  subject  are  all  subordinate  to  these. 
For  instance :  That  the  damages  must  flow  directly  and  naturally 
from  the  breach  of  contract,  is  a  mere  mode  of  expressing  the  first ; 
and  that  they  must  be  not  the  remote  but  proximate  consequence  of 
such  breach,  and  must  not  be  speculative  or  contingent,  are  different 
modifications  of  the  last. 

These  two  conditions  are  entirely  separate  and  independent,  and 
to  blend  them  tends  to  confusion ;  thus  the  damages  claimed  may  be 
the  ordinary  and  natural,  and  even  necessary,  result  of  the  breach, 
and  yet,  if  in  their  nature  uncertain,  they  must  be  rejected ;  as 
in  the  case  of  Blanchard  v.  Ely,  where  the  loss  of  the  trips  was 
the  direct  and  necessary  consequence  of  the  plaintiff's  failure  to  per- 
form. So  they  may  be  definite  and  certain,  and  clearly  consequent 
upon  the  breach  of  contract,  and  yet  if  such  as  would  not  naturally 
flow  from  such  breach  but  for  some  special  circumstances,  collateral 
to  the  contract  itself  or  foreign  to  its  apparent  object,  they  cannot 
be  recovered ;  as  in  the  case  of  the  loss  by  the  clergyman  of  his  tithes 
by  reason  of  the  failure  to  deliver  the  horse. 

Cases  not  unfrequently  occur  in  which  both  these  conditions  are 
fulfilled  :  where  it  is  certain  that  some  loss  has  been  sustained  or 
damage  incurred,  and  that  such  loss  or  damage  is  the  direct,  imme- 
diate, and  natural  consequence  of  the  breach  of  contract,  but  where 
the  amount  of  the  damages  may  be  estimated  in  a  variety  of  ways. 
In  all  such  cases  the  law,  in  strict  conformity  to  the  principles  al- 
ready advanced,  uniformly  adopts  that  mode  of  estimating  the  dam- 
ages which  is  most  definite  and  certain.  The  case  of  Freeman  v. 
Clute  (3  Barb.  424)  is  a  case  of  this  class,  and  affords  an  apt  illus- 
tration of  the  rule.  That  case  was  identical  in  many  of  its  features 
with  the  present.  The  contract  there  was  to  construct  a  steam 
engine  to  be  used  in  the  process  of  manufacturing  oil,  and  damages 
were  claimed  for  delay  in  furnishing  it.  It  was  insisted  in  that  case, 
as  in  this,  that  the  damages  were  to  be  estimated  by  ascertaining 
the  amount  of  business  which  could  have  been  done  by  the  use  of 
the  engine,  and  the  profits  that  would  have  thence  accrued.  This 
claim  was  rejected  by  Mr.  Justice  Harris,  before  whom  the  cause 
18 


274       CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

was  tried,  upon  the  precise  ground  taken  here.  But  he  nevertheless 
held  that  compensation  was  to  be  allowed  for  the  "loss  of  the  use  of 
the  plaintiff's  mill  and  other  machinery."  He  did  not,  it  is  true,  . 
specify  in  terms  the  mode  in  which  the  value  of  such  use  was  to  be 
estimated  ;  but  as  he  had  previously  rejected  the  probable  profits  of 
the  business  as  the  measure  of  such  value,  no  other  appropriate  data 
would  seem  to  have  remained  but  the  fair  rent  or  hire  of  the  mill 
and  machinery ;  and  such  I  have  no  doubt  was  the  meaning  of  the 
judge.  Thus  understood,  the  decision  in  that  case,  and  the  reasoning 
upon  which  it  was  based,  were,  I  think,  entirely  accurate. 

Had  the  defendants  in  the  case  of  Blanchard  v.  Ely  (supra) 
taken  the  ground  that  they  were  entitled  to  recoup,  not  the  uncer- 
tain and  contingent  profits  of  the  trips  lost,  but  such  sum  as  they 
could  have  realized  by  chartering  the  boat  for  those  trips,  1  think 
their  claim  must  have  been  sustained.  The  loss  of  the  trips,  which 
had  certainly  occurred,  was  not  only  the  direct,  but  the  immediate 
and  necessary  result  of  the  breach  of  the  plaintiffs'  contract. 

The  rent  of  a  mill  or  other  similar  property,  the  price  which 
should  be  paid  for  the  charter  of  a  steamboat,  or  the  use  of  machin- 
ery, <fec,  &c,  are  not  only  susceptible  of  more  exact  and  definite 
proof,  but,  in  a  majority  of  cases,  would,  I  think,  be  found  to  be  a 
more  accurate  measure  of  the  damages  actually  sustained  in  the  class 
of  cases  referred  to,  considering  the  contingencies  and  hazards  at- 
tending the  prosecution  of  most  kinds  of  business,  than  any  estimate 
of  anticipated  profits  ;  just  as  the  ordinary  rate  of  interest  is  upon 
the  whole  a  more  accurate  measure  of  the  damages  sustained  in  con- 
sequence of  the  non-payment  of  a  debt,  than  any  speculative  profit 
which  the  creditor  might  expect  to  realize  from  the  use  of  the 
money.  It  is  no  answer  to  this  to  say  that,  in  estimating  what 
would  be  the  fair  rent  of  a  mill,  we  must  take  into  consideration  all 
the  risks  of  the  business  in  which  it  is  to  be  used.  Rents  are  grad- 
uated according  to  the  value  of  the  property,  and  to  an  average  of 
profits  arrived  at  by  very  extended  observation ;  and  so  accurate  are 
the  results  of  experience  in  this  respect,  that  rents  are  rendered 
nearly,  if  not  quite,  as  certain  as  the  market  value  of  commodities  at 
a  particular  time  and  place. 

The  proper  rule  for  estimating  this  portion  of  the  damages  in  the 
present  case  was  to  ascertain  what  would  have  been  a  fair  price  to 
pay  for  the  use  of  the  engine  and  machinery,  in  view  of  all  the 
hazards  and  chances  of  the  business  ;  and  this  is  the  rule  which  I 
understand  the  referee  to  have  adopted.     There  is  no  error  in  the 


SMEED   v.    FOOKD.  275 

other  allowances  made  by  the  referee.     The  judgment  should  there- 
fore be  affirmed. 

All  the  judges  concurring,  judgment  affirmed. 

Note. — The  rules  in  the  foregoing  leading  American  case  have  been  re- 
affirmed by  the  court  which  decided  it.  Devlin  v.  Mayor,  63  N.  Y.  8.  Where 
damages  were  claimed  for  breach  of  warranty  in  the  sde  of  machinery  sold  by  a 
person  not  the  manufacturer,  and  where  no  fraud  was  charged,  it  was  held  to  be 
error  to  instruct  the  jury  that  they  might  allow  as  damages  the  value  of  the  use 
of  the  machinery  for  a  reasonable  time  to  make  the  repairs  necessary  to  cause 
the  machinery  to  comply  with  the  warranty.  Booker  et  al.  v.  Goldsborough,  44 
Ind.  490  (1873). 


Breach  or  Contract  to  Deliver  Engine  ;  Direct  Loss. 


COURT    OF    QUEEN  S    BENCH. 

[1859.]     Smeed  v.  Foord  (1  Ellis  &  Ellis,  G02  ;  28  L.  J.  Q  B. 

K  S.  178). 

If  a  person  contracts  with  another  for  the  sale  of  a  particular  article,  and  breaks  his  con- 
tract, the  proper  damages  are  such  as  may  fairly  and  reasonably  be  considered  either 
as  arising  naturally  from  the  breach  of  contract,  or  such  as  may  reasonably  be  sup- 
posed to  have  been  in  the  contemplation  of  the  parties  at  the  time  they  made  the 
contract  as  the  probable  result  of  the  breach  of  it. 

The  defendant  contracted  to  deliver  to  the  plaintiff,  a  farmer,  a  steam  thrashing  machine 
■within  three  weeks  from  the  24th  of  July,  but  did  not  do  so  till  the  11th  of  Septem- 
ber. The  plaintiff,  as  the  defendant  well  knew,  was  in  the  habit  of  thrashing  out 
his  wheat  in  the  field,  and  sending  it  off  at  once  to  the  market.  In  consequence  of 
the  non-delivery  of  the  machine,  it  became  necessary  to  carry  the  wheat  home  and 
to  stack  it.  The  wheat  was  damaged  by  exposure  to  weather,  so  that  it  was  neces- 
sary to  dry  it  in  a  kiln,  and  the  quality  was  much  deteriorated,  and  before  it  could 
be  sold  the  market  price  had  fallen.  The  defendant  knew  that  the  machine  was 
wanted  for  immediate  use  at  the  time  appointed  for  the  delivery,  but  he  led  the 
plaintiff  on  from  day  to  day  to  believe  that  it  would  be  shortly  delivered  :  Held,  in 
an  action  for  the  non-delivery  of  the  machine,  in  accordance  with  the  rule  laid  down 
in  Hadley  v.  Baxendale  (9  Exch.  Rep.  341 ;  s.  c.  23  Law  J.  Rep.  N.  S.  Exch.  179), 
that  the  plaintiff  was  entitled  to  recover  damages  in  respect  of  the  deterioration  of 
the  quality  of  the  wheat,  in  respect  of  the  expense  of  carrying  and  stacking  it,  and 
in  respect  of  the  expense  of  kiln-drying. 

Held,  also,  that  the  plaintiff  was  not  entitled  to  damages  in  respect  of  the  fall  in  the 
market  price. 

At  the  trial,  which  took  place  on  the  15th  of  November,  1858,  at 
Westminster,  before  Crompton,  J.,  it  appeared  that  the  plaintiff  was 


276  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

a  farmer  carrying  on  business  at  Sittingbourne,  in  Kent,  and  that  his 
practice  was  to  thrash  out  his  wheat  in  the  field  and  send  it  off  at 
once  to  the  market,  without  stacking  it  first  at  home. 

On  the  17th  of  July,  1856,  the  following  letter  was  written  on 
behalf  of  the  plaintiff  to  the  defendant :  "  Mr.  Smeed  wishes  to 
know  the  price  of  a  thrashing  machine,  seven  or  eight  horse  power 
engine,  and  complete  with  all  new  improvements  attached,  and  how 
soon  it  could  be  had.     An  early  reply  will  oblige.    . 

"  For  George  Smeed, 

"  J.  H.  Bradley." 
On  the  19th  of  July  the  defendant  replied  as  follows  :  "  In  reply 
to  your  favor  of  the  17th  inst.,  in  reference  to  an  engine  and  ma- 
chine, I  beg  to  state  the  prices  below  (then  followed  a  statement  of 
prices).  The  above  machine  finishes  the  corn  for  market,  and  also 
makes  a  separation  of  the  tail.  Could  let  you  have  one  in  a  month 
from  the  date  of  order. 

(Signed)         "  George  Foord." 
On  the  24th  of  July  he  wrote  again  :  "  I  have  heard  from  Lin- 
coln.    They  can  let  you  have  an  engine  and  machine  in  three  weeks. 
If  you  should  want  one  before,  I  could  lend  you  one. 

(Signed)  "  George  Foord." 
On  the  same  day  the  plaintiff  sent  the  following  letter :  "  Mr. 
Smeed  will  take  a  seven-horse  engine  and  combined  threshing  ma- 
chine, with  the  latest  improvements,  provided  you  can  let  him  have 
it  in  three  weeks  from  this  date,  or  he  will  be  forced  to  hire  as  be- 
fore. 

(Signed)         "  Pro  George  Smeed, 

"  J.  H.  Bradley." 
On  the  28th  of  July  the  defendant  wrote  :  "  I  am  in  receipt  of 
your  order  for  a  seven-horse  engine  and  machine,  which  shall  have 
our  best  attention,  and  be  forwarded  by  the  time  you  state. 

(Signed)         "  George  Foord." 
On  the  18th  of  August  he  wrote  again  :  "  I  have  no  doubt  your 
engine  will  be  sent  off  this  week.     I  have  by  this  post  written  to 
Lincoln,  stating  that  you  are  much  in  want  of  it. 

(Signed)  "  George  Foord." 

On  the  2d  of  September  he  wrote  again  :  "  I  have  had  a  letter 
from  Lincoln  this  morning.  You  may  expect  your  engine  and  ma- 
chine in  a  few  days.     They  promise  to  get  it  off  this  week. 

(Signed)         "  George  Foord." 
On  the  3d  the  plaintiff  sent  the  following :  "  I  beg  to  say  that 
Mr.  Smeed  is  very  much  injured  by  not  having  the  engine,  &c,  at 


SMEED  v.   FOORD.  277 

the  time  stated.  He  would  by  this  time  have  thrashed  out  400 
quarters.  That  is  not  all.  The  corn  is  all  unhoused,  expecting  the 
engine,  &c,  as  to  order,  and  Mr.  Smeed  will  hold  you  responsible  for 
the  loss  he  may  sustain  in  not  executing  the  order  to  the  time  speci- 
fied in  your  letter. 

(Signed)         "  For  Geoege  Smeed, 

"  J.  H.  Bradley." 

The  engine  and  machine  were  sent  to  London  on  the  11th  of 
September,  and  were  thence  forwarded  to  the  plaintiff,  who,  after 
using  them  in  thrashing  out  his  corn,  sold  them  again,  and  subse- 
quently paid  the  price  demanded  for  them  by  the  defendant.  It 
was  proved  that  the  plaintiff  had  had  dealings  with  the  defendant 
before,  and  that  the  defendant  knew  what  was  the  practice  of  the 
plaintiff  as  to  thrashing  his  corn  in  the  field  and  sending  it  off  to 
market  at  once.  The  plaintiff  had  had  two  interviews  with  the  de- 
fendant between  the  time  the  order  was  given  and  the  time  of  de- 
livery, and  had  pressed  him  to  deliver  the  engine  and  machine  at 
once.  The  plaintiff  had  not  asked  the  defendant  to  lend  him  an  en- 
gine, and  there  was  contradictory  evidence  as  to  whether  he  might 
not  have  contrived  to  get  one,  but  it  was  proved  that  he  had  applied 
to  one  firm  unsuccessfully.  In  consequence,  as  it  was  alleged,  of 
the  engine  and  machine  not  having  been  delivered  at  the  time  the 
plaintiff  expected,  it  became  necessary  to  carry  and  stack  the  wheat, 
but  when  that  was  done,  a  thunder  storm  occurred,  and  as  the  plaint- 
iff had  no  straw  to  thatch  the  stacks  with,  great  damage  ensued,  and 
it  became  necessary  to  dry  a  quantity  in  a  kiln,  the  quality  in  conse- 
quence being  much  deteriorated.  When  the  thrashing  was  com- 
pleted, the  markets  were  lower  than  they  had  been  at  the  time  when 
the  plaintiff  would  have  sold,  if  he  had  been  able  to  thrash  as  he  in- 
tended ;  and  therefore  his  profits  were  smaller  than  he  expected. 
The  jury  returned  a  verdict  for  the  plaintiff  for  590/.,  and  the 
learned  judge  gave  the  defendant  leave  to  move  to  reduce  the  dam- 
ages to  such  amount  as  the  court  should  think  the  plaintiff  was  en- 
titled to  recover. 

Subsequently  a  rule  was  obtained  by  Gordon  Allen,  calling  upon 
the  plaintiff  to  show  cause  why  the  amount  of  the  verdict  should  not 
be  reduced  to  such  sum  as  the  court  should  direct,  on  the  ground 
that  the  damages  sought  to  be  recovered,  and  of  which  evidence  was 
given,  were  not  such  as  legally  resulted  from  the  breach,  if  any,  of 
the  contract. 

Macaulay  and  Prentice  showed  cause. — The  question  is,  whether 
the  plaintiff  is  entitled  to  substantial,  or  only  to  nominal  damages.  It 


278  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

is  submitted  that,  upon  principle  and  authority,  he  is  entitled  to  re- 
cover substantial  damages.  lie  claims  damages  in  respect  of  the  ex- 
pense he  has  been  put  to  in  carting  home  and  stacking  the  wheat, 
which  would  have  been  thrashed  in  the  field  according  to  his  usual 
practice,  if  the  engine  had  been  delivered  at  the  time  agreed  upon. 
Next,  he  claims  damages  in  respect  of  the  injury  which  was  done  to 
the  wheat  by  the  weather  spoiling  the  color  of  it,  and  rendering  it 
less  valuable.  Next,  he  claims  damages  in  respect  of  the  expense  he 
was  put  to  in  kiln-drying  the  wheat ;  and  lastly,  he  asks  for  damages 
for  the  loss  he  has  sustained  by  reason  of  the  fall  in  the  markets. 
All  these  classes  of  damages  arise  from  the  non-performance  of  the 
contract,  and  they  are  such  as  might  have  been  foreseen  as  likely  to 
happen  if  the  machine  was  not  delivered  at  the  time  appointed.  The 
defendant  and  the  plaintiff  had  had  dealings  before,  and  the  former 
knew  the  position  of  the  latter,  and  also  what  his  practice  was  as  to 
thrashing  his  wheat  in  the  field,  instead  of  first  carrying  it  home  and 
stacking  it,  as  is  done  in  some  other  counties.  If  the  machine  had 
been  delivered  within  three  weeks  from  the  time  the  order  was  given, 
the  plaintiff  would  not  have  been  injured.  It  will  be  said  that  he 
ought  to  have  hired  another  machine,  but  he  did  try  to  do  so,  and 
failed  ;  and,  indeed,  he  was  not  bound  to  hire  another,  for  he  was  led 
on  by  the  defendant  from  day  to  day  to  expect  that  it  would  be  sent 
to  him.  The  letter  of  the  24th  of  July  informs  the  defendant  that 
if  the  machine  was  not  sent  in  three  weeks,  it  would  be  necessary  to 
hire  one,  and  the  defendant,  in  his  answer  to  that  letter,  asserts  that 
it  should  be  sent  at  that  time  ;  but  instead  of  keeping  his  promise,  he 
does  not  send  it  till  the  11th  of  September,  although  he  knew  well 
that  it  was  wanted  for  immediate  use  at  the  expiration  of  the  three 
weeks. 

[Lord  Campbell,  C.  J. — Would  the  last  amount  which  you  claim 
have  been  foreseen  as  a  natural  consequence  of  a  breach  of  contract  ? 
There  was  just  as  much  chance  of  the  market  rising  as  falling.] 

That  item,  no  doubt,  stands  upon  a  different  footing  from  the 
others,  but  it  is  clear  that  the  plaintiff  ought  to  recover  in  respect  of 
them.  The  rule  is  laid  down  in  Hadley  v.  Baxendale  in  this  way  : 
"  Where  two  parties  have  made  a  contract  which  one  of  them  has 
broken,  the  damages  which  the  other  party  ought  to  receive  in  re- 
spect of  such  breach  of  contract  should  be  such  as  may  fairly  and 
reasonably  be  considered,  either  arising  naturally,  i.  e.,  according  to 
the  usual  course  of  things,  from  such  breach  of  contract  itself,  or 
such  as  may  reasonably  be  supposed  to  have  been  in  the  contempla- 
tion of  both  parties  at  the  time  they  made  the  contract,  as  the  prob- 


SMEED   v.    FOORD.  279 

able  result  of  the  breach  of  it."  Now,  if  that  rule  is  applied  to  the 
present  case,  it  follows  that  the  plaintiff  will  be  entitled  to  recover, 
for  as  the  defendant  knew  the  circumstances  under  which  the  plaint- 
iff wished  to  have  the  engine  sent  to  him,  the  consequences  which 
have  in  reality  followed  from  the  breach  of  contract  are  such  as  would 
have  been  in  the  contemplation  of  himself  and  the  plaintiff  ;  and  they 
are  also  the  natural  consequences  of  the  breach  of  contract.  In  Sedg. 
on  Damages,  2d  ed.  p.  6,  it  is  said  :  "  The  modern  French  law,  as  de- 
clared in  the  JSTapoleon  Code,  contains  the  recognition  of  some  gen- 
eral principles.  The  damages  due  to  the  creditor  consist  in  general 
of  the  loss  that  he  has  sustained  and  the  profit  which  he  has  been 
prevented  from  acquiring,  subject  to  the  modifications  hereinafter 
contained.  The  debtor  is  only  liable  for  the  damages  foreseen,  or 
which  might  have  been  foreseen  at  the  time  of  the  execution  of  the 
contract,  when  it  is  not  owing  to  his  fraud  that  the  agreement  has 
been  violated."  And  in  2  Kent's  Commentaries,  8th  ed.  p.  625,  note, 
it  is  said  :  "Damages  for  breaches  of  contract  are  only  those  which 
are  incidental  to  and  directly  caused  by  the  breach,  and  may  reason- 
ably be  supposed  to  have  entered  into  the  contemplation  of  the  par- 
ties," &c.  All  those  losses  which  the  plaintiff  has  incurred  were  such 
as  might  have  been  foreseen.  In  Waters  v.  Towers  (8  Exch.  Eep.  401 ; 
s.  c.  22  Law  J.  Eep.  N.  S.  Exch.  186),  Aldeeson,  B.,  said :  "  If  a 
person  undertakes  to  make  a  certain  article  for  another,  and  to  de- 
liver it  to  him  on  a  particular  day,  but  fails  to  do  so  until  a  year  aft- 
erwards, it  would  be  most  unreasonable  that  the  latter  should  not 
recover  any  damages  because  the  contract  was  not  in  writing.  The 
existence  of  a  contract  is  evidence  of  the  probable  amount  of  loss 
sustained.  Suppose  the  plaintiffs  had  said,  '  We  should  have  made 
such  and  such  contracts,  if  the  defendants  had  performed  theirs,' 
and  the  jury  believed  that  the  plaintiffs  would  have  done  so,  that 
would  surely  have  been  evidence  of  the  amount  of  loss  occasioned  by 
the  defendant's  breach  of  contract." 

[Hill,  J. — The  court  treated  it  as  something  to  be  looked  at  to 
show  the  amount  of  profits.] 

In  Cort  v.  The  Ambergate  Railway  Co.  (17  Q.  B.  Eep.  127 ;  s.  c. 
20  L.  J.  Eep.  1ST.  S.  Q.  B.  460),  which  was  an  action  for  not  accept- 
ing a  quantity  of  iron  chairs,  it  appeared  that  the  plaintiff  had  en- 
tered into  a  contract  with  other  persons  to  supply  a  certain  number 
of  the  chairs,  and  was  obliged  to  pay  5001.  to  get  rid  of  their  con- 
tract ;  they  had  also  entered  into  arrangements  with  iron  founders 
for  the  supply  of  iron,  and  had  built  a  large  foundry  for  the  manu- 
facture of  the  chairs,  and  it  was  held  that  these  matters  were  proper 


280  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

to  be  taken  into  consideration  in  estimating  the  damages.  These  au- 
thorities are  in  favor  of  the  plaintiff  in  the  present  action,  and  he  is 
entitled  to  substantial  damages. 

[Crompton,  J. — It  struck  me  at  the  trial  that  the  plaintiff  was  led 
on  from  day  to  day  to  expect  that  the  engine  would  be  delivered.] 

Yes ;  and  the  non-delivery  was  the  real  cause  of  the  damage. 

Echvin  James,  Gordon  Allen  and  Powell,  in  support  of  the  rule. 
— The  verdict  ought  to  be  entered  for  nominal  damages  only,  for, 
adopting  the  rule  laid  down  in  Hadley  v.  Baxendale,  it  is  clear  that 
the  damages  cannot  reasonably  be  supposed  to  have  been  in  the  con- 
templation of  both  parties  at  the  time  they  made  the  contract  as  the 
probable  result  of  the  breach  of  it.  The  claim  made  is  perfectly  ab- 
surd, and  is  like  the  claim  made  in  respect  of  a  pig  because  it  might 
have  won  the  prize,  or  in  respect  of  a  horse  because  it  might  have 
won  a  race  ;  the  plaintiff  never  took  the  trouble  to  ask  the  defend- 
ant to  lend  him  an  engine,  and  he  received  and  kept  the  one  which 
was  sent  to  him. 

[Crompton,  J. — There  was  a  good  deal  of  doubt  whether  the 
plaintiff  could  have  hired  another  engine,  but  he  certainly  never 
asked  the  defendant  for  one.  "Wightman,  J. — But  the  defendant 
must  have  known  that  one  was  wanted,  for  the  plaintiff  was  contin- 
ually asking  for  the  one  he  had  ordered.] 

It  was  the  duty  of  the  plaintiff  to  protect  his  own  property,  and 
the  defendant  could  not  have  contemplated  any  delay  in  the  thrash- 
ing the  wheat.  The  facts  of  Hadley  v.  Baxendale  are  different  from 
the  facts  of  this  case,  for  there  the  defendants  were  informed  that 
the  mill  had  stopped,  and  that  the  shaft  must  be  sent  immediately. 

[Crompton,  J. — Yes  ;  but  the  judgment  does  not  assume  the  facts 
as  they  are  stated.] 

The  rule  applicable  to  the  present  case  is  laid  down  in  Mayne  on 
Damages,  p.  15,  where  it  is  said  :  "  But  when  the  thing  purchased  is 
a  specific  article,  and  not  the  right  to  make  a  profit,  the  measure  of 
damages  will  be  the  value  of  that  article,  or  the  difference  between 
the  contract  price  and  that  at  which  it  could  have  been  purchased 
elsewhere." 

[Lord  Campbell,  C.  J. — That  is  where  it  is  sold  as  an  article  of 
commerce,  sold  to  be  sold  again.  Hill,  J. — The  reason  that  used  to 
be  given  was,  that  the  intended  purchaser  had  the  ]3rice  agreed  upon 
in  his  pocket  ready  to  pay  ;  and  that  if  the  price  of  the  article  in  the 
market  had  risen  he  would  not  be  able  to  buy  with  the  same  amount 
of  money.] 

In  Pothier,  Traite  des  Obligations,  Partie  Ire,  c.  2,  s.  161,  the 


SMEED   t.    FOORD.  281 

following  passage  occurs  :  "  Ordinairement  les  parties  sont  censees 
n'avoir  prevu  que  les  dommages  et  interets  que  le  creancier,  par 
l'inexecution  de  1' obligation,  pourroit  souffrir  par  rapport  a,  la  chose 
meme  qui  en  a  ete  l'objet,  et  non  ceux  que  l'inexecution  de  1' obliga- 
tion lui  a  occasione  d'ailleurs  dans  ses  autres  biens.  C'est  pourquoi, 
dans  ce  cas,  le  debiteur  n'est  pas  tenu  de  ceux-ci,  mais  seulement  de 
ceux  soufferts  par  rapport  a  la  cliose  qui  a  fait  l'objet  de  1' obligation 
— danvii  et  interesse  propter  ipsam  rem  non  habitant.  Walton  v. 
Fothergill  (7  Car.  &  P.  392),  was  also  referred  to. 

Lord  Campbell,  C.  J. — In  this  case  there  was  an  express  contract 
that  the  engine  should  be  delivered  upon  the  14th  of  August,  but  it 
was  not  delivered  on  that  day,  nor  till  a  long  time  afterwards.  The 
question  is,  whether,  under  the  circumstances  surrounding  the  case, 
the  plaintiff  can  only  recover  nominal  damages,  or  whether  he  is  en- 
titled to  substantial  damages.  The  rule  is  to  be  taken  from  the  case 
of  Hadley  v.  Baxendale,  which  accords  with  the  Code  Napoleon, 
with  Pothier,  and  with  Chancellor  Kent,  and  which  decides  that  the 
plaintiff  is  entitled  to  receive  as  a  compensation  such  damages  as  are 
the  natural  consequences  of  the  breach  of  contract,  or  such  as  may 
reasonably  be  supposed  to  have  been  in  the  contemplation  of  the 
parties.  I  do  not  say  how  far  this  rule  applies  to  the  circumstances 
of  that  case ;  but  it  is  an  abstract  rule  of  law  which  I  agree  with. 
Then,  applying  that  rule  to  this  case,  I  say  that  the  plaintiff  is  en- 
titled to  substantial  damages,  for  this  is  not  like  the  case  of  a  horse 
intended  to  run  a  race,  which  was  sent  by  railway,  and  was  not  de- 
livered in  time,  so  that  he  lost  the  chance  of  winning  the  race,  nor 
like  the  case  of  a  pig  which  might  have  won  the  prize,  nor  like  the 
other  case  put  by  Lord  Ellenbokough,  of  a  man  traveling  who  was 
delayed  on  his  journey  by  the  coach  breaking  down,  jper  quod  he  lost 
his  lieutenancy.  The  plaintiff,  who  was  a  large  farmer,  was  known 
by  the  defendant  to  be  accustomed  to  thrash  out  his  wheat  in  the 
field ;  he  gave  the  order  for  the  thrashing  machine,  which  it  was 
agreed  should  be  delivered  on  the  14th  of  August,  at  which  time  the 
wheat  might  reasonably  be  expected  to  be  ripe  for  thrashing ;  the 
defendant  knew  that  it  was  wanted  for  that  purpose.  Then,  was  it 
not  in  the  contemplation  of  the  parties  that  if  it  was  not  delivered  at 
that  time  damage  by  rain  might  ensue  to  the  plaintiff?  The  thu 
der  storm  occurred,  and  the  plaintiff's  wheat  was  damaged.  If  the 
engine  had  been  delivered  at  the  time  agreed  upon,  the  corn  would 
have  been  thrashed  out,  and  would  have  been  carried  market  in 
good  condition,  instead  of  which  it  was  damaged.  Is  not  this  injury 
a  natural  consequence  of  the  breach  of  contract  ?  and  may  it  not 


282       CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

reasonably  be  supposed  to  have  been  foreseen  by  the  parties  ?  Next, 
it  is  said  by  the  defendant,  that  the  plaintiff  ought  to  have  hired  or 
borrowed  an  engine ;  and  if  it  had  been  proved  that  that  could  have 
been  done,  it  might  have  been  urged  in  mitigation  of  damages  ;  but 
I  do  not  find  that  that  was  so.  The  defendant  never  offered  him  one, 
but  led  him  on  from  time  to  time  to  suppose  that  the  one  which  he 
had  ordered  would  be  supplied  to  him.  There  was  therefore  no  de- 
fault on  the  part  of  the  plaintiff  in  not  hiring  another  engine,  and  all 
the  consequences  which  resulted  were  the  natural  effect  of  the  breach 
of  contract.  Therefore,  as  respects  those  items  for  which  the  plaint- 
iff claims  damages  as  resulting  from  the  falling  of  the  rain,  1  am  of 
opinion  that  he  is  entitled  to  recover.  But  as  respects  the  fall  of  the 
market  price  of  wheat,  in  respect  of  which  he  claims  damages,  my 
opinion  is  quite  different,  because  it  could  not  have  been  foreseen  by 
the  parties  that  the  markets  would  fall ;  it  was  not  in  the  contem- 
plation of  the  parties  at  the  time  they  made  the  contract,  and  was 
not  the  natural  consequence  of  the  breach  of  contract. 

Wightman,  J. — The  question  is,  whether  the  plaintiff  is  only  en- 
titled to  nominal  damages,  or  whether  any  of  the  items  for  which  he 
claims  damages  are  brought  within  the  rule  laid  down  in  Hadley  v. 
Baxendale.  It  is  there  said  that  the  damages  to  be  recovered  ought 
to  be  such  as  either  would  arise  naturally,  or  as  might  reasonably  be 
supposed  to  have  been  in  the  contemplation  of  the  parties  at  the  time 
they  made  the  contract,  as  the  probable  result  of  the  breach  of  it. 
That  being  so,  it  seems  to  me  that  the  plaintiff  is  entitled  to  recover 
in  respect  of  three  of  the  heads  of  damage  for  which  he  claims,  that 
is,  for  the  loss  by  reason  of  the  exposure  to  the  weather,  for  the  ex- 
pense of  carting  and  stacking  the  wheat,  and  for  the  expense  of  kiln- 
drying.  I  think  that  the  defendant's  case  would  stand  better  if  he 
had  absolutely  refused  to  deliver  the  engine  at  the  time  agreed  upon, 
for  then  the  plaintiff  might  have  got  another ;  but  instead  of  re- 
fusing to  deliver,  the  defendant  led  the  plaintiff  on  to  expect  that  it 
would  be  delivered,  and  thus  may  well  have  prevented  the  plaintiff 
from  purchasing  or  hiring  another.  If  the  defendant  was  sincere  in 
his  offer  to  lend  an  engine  to  the  plaintiff,  he  should  have  offered  to 
do  so,  but  he  never  did,  and  I  am  of  opinion  that  the  plaintiff  is  en- 
titled to  recover  in  respect  of  the  three  classes  of  damages  which  I 
have  already  mentioned. 

Crompton,  J. — This  case  falls  within  the  rule  laid  down  in  Had- 
ley v.  Baxendale.  The  items  in  the  plaintiff's  claim  which  have  been 
referred  to  by  my  brother  Wightman,  are  the  damages  which  would 
naturally  arise,  and  such  as  would  be  in  the  contemplation  of  the 


SMEED   v.   FOORD.  283 

parties  as  the  probable  result  of  the  breacli  of  it.  I  think  that  we 
must  not  extend  Hadley  v.  Baxendale  any  further  than  it  has  been 
carried  at  present.  The  present  case  is  one  where  the  contract  was 
for  a  particular  article  wanted  for  a  particular  purpose,  and  there 
may  be  a  great  difference  between  a  case  in  which  a  person  delivers 
an  article  to  a  carrier  to  be  conveyed  by  him,  and  a  case  where  there 
is  a  contract  between  two  parties,  both  of  whom  know  what  the  state 
of  things  is  at  the  time  the  contract  is  made.  We  are  bound  by  the 
decision  as  far  as  it  goes,  and  it  is  clear  law,  as  respects  the  proxi- 
mate natural  damages  arising  from  the  breach  of  contract,  and  we 
cannot  complain  of  the  other  branch  of  the  rule  that  the  damages 
should  be  such  as  may  reasonably  be  supposed  to  have  been  in  the 
contemplation  of  both  parties,  because  that  only  means  that  they 
should  be  such  as  are  natural,  and  such  as  the  parties  would  naturally 
look  for.  I  should  tell  the  jury  that  they  ought  to  give  the  plaintiff 
such  damages  as  were  the  natural  consequences  of  the  breach  of  con- 
tract, but  it  is  doubtful  whether  anything  more  than  the  general  rule 
ought  to  be  laid  down.  As  for  the  question  whether  the  plaintiff 
could  have  got  another  engine,  that  might  go  in  mitigation  of  dam- 
ages if  he  had  been  able  to  do  so  ;  but  all  that  is  to  be  left  to  the  jury. 
Hill,  J. — I  am  of  the  same  opinion.  Upon  the  facts  found,  the 
heads  in  relation  to  which  it  is  decided  that  the  plaintiff  is  entitled  to 
recover  damages,  are  such  as  really  come  within  the  rule  in  Hadley 
V.  Baxendale,  for  we  find  that  the  plaintiff  was  a  farmer  occupying 
land,  and  that  the  defendant  knew  it ;  we  find  him  contracting  with 
the  defendant  for  the  purchase  of  the  engine,  and  the  defendant 
knew  that  the  object  of  the  plaintiff  was  to  use  it  to  thrash  out  the 
wheat  in  the  field.  The  letter  of  the  24th  of  July,  from  the  plaintiff 
to  the  defendant,  in  which  the  defendant  is  told  that  the  plaintiff 
would  take  the  engine,  provided  he  could  have  it  in  three  weeks 
from  that  date,  or  that  he  would  be  forced  to  hire  as  before,  shows 
that  the  defendant  knew  that  it  was  wanted  at  the  particular  time 
for  the  purpose  of  thrashing.  He  accepts  the  contract,  but  does  not 
deliver  the  engine  till  the  11th  of  September.  At  first,  I  thought 
that  the  damage  must  be  confined  to  the  cost  of  hiring  another  en- 
gine on  the  14th  of  August,  but  it  seems  that  the  plaintiff  was  con- 
tinually told  by  the  defendant  that  the  one  ordered  would  be  shortly 
delivered,  so  that  he  was  precluded  from  hiring  or  borrowing 
another,  as  he  might  have  done  if  the  contract  had  been  regularly 
broken.  In  Hadley  v.  Baxendale,  Lord  Wensleydale  called  atten- 
tion to  the  distinction  which  has  been  adverted  to  by  my  brother 
Ceompton.     He  said :   "  In   a  contract  to  build  a  mill,  the  builder 


284       CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

knows  that  a  delay  on  his  part  will  result  in  a  loss  of  business  ;  but  a 
carrier  contracting  to  carry  a  shaft  or  wheel  does  not  estimate  in  his 
mind  the  consequential  damages  by  the  loss  of  trade  arising  from  the 
loss  or  damage  of  the  article."  *  I  am  of  opinion  that  the  rule  must 
be  discharged. 

[It  was  agreed  that  Crompton,  J.,  should  name  the  sum  to  which 
he  considered  the  plaintiff  was  entitled  in  accordance  with  the  de- 
cision of  the  court,  and  the  learned  judge  named  the  sum  of  300Z.] 

Rule  discharged. 


Breach  of  Contract;  Damages  for  Inconvenience  to  Business. 


SUPREME    COURT,    WISCONSIN. 

[1862.]    Shepard  v.  Milwaukee  Gas-light  Company  (15 
Wise.  [318],  349). 

In  an  action  against  a  gas-light  company  for  wrongfully  refusing  to  furnish  the  plaintiff's 
store  with  gas,  the  plaintiff  gave  evidence  to  show  the  nature  and  extent  of  his  busi- 
ness, and  that  it  was  inconvenient  and  difficult  to  transact  it  without  gas ;  and  that 
the  want  of  gas,  he  alone  bein?  deprived  of  it,  made  his  store  less  attractive  to  cus- 
tomers and  tended  to  diminish  his  business.    Held,  that  the  evidence  was  admissible. 

The  court,  in  such  a  case,  did  not  err  in  instructing  the  jury  that  the  plaintiff,  if  entitled 
to  recover,  should  have  such  damages  as  would  compensate  him  for  the  pecuniary 
loss,  and  also  for  the  inconvenience  and  annoyance  experienced  by  him  in  his  mer- 
cantile business,  arising  out  of  the  defendant's  refusal  to  furnish  gas  to  him  (Jolly  v. 
Single,  16  Wise.  280;  Kinney  v.  Crocker,  Rec'r,  18  Id.  14;  Flick  v.  Weatherbee,  20 
Id.  392;  cited  Richardson  v.  Chynoweth,  26  Id.  660.) 

Appeal  from  the  Circuit  Court  for  Milwaukee  county. 

This  was  an  action  for  wrongfully  refusing  to  furnish  gas  to  light 
the  plaintiff's  store,  upon  a  proper  demand  and  offer  to  pay  for  it. 
The  case  was  once  before  in  this  court,  and  the  substance  of  the 
complaint  and  answer  is  stated  in  11  Wise.  234.  As  to  the  damage 
sustained  by  the  plaintiff  for  want  of  gas,  proof  was  introduced  to 
show  the  nature  and  extent  of  the  plaintiff's  business ;  that  it  was 
inconvenient  and  difficult  to  read  the  labels  on  the  goods  in  the 
evening  by  the  light  of  lamps  and  candles,  the  shelves  reaching  to 
the  ceiling,  sixteen  feet  from  the  floor ;  that  they  frequently  sold 

*This  passage  does  not  appear  in  the  Exchequer  Reports,  but  it  may  be  found  in  the 
report  of  the  case  at  23  Law  J.  Rep.  N.  S.  Exch.  181. 


SHEPARD   v.   MILWAUKEE  GAS-LTGHT  COMPANY.  285 

goods  in  the  evening  to  country  merchants ;  that  customers  fre- 
quently found  fault  with  their  lights ;  that  lighting  their  store  by 
oil  and  candles  made  it  difficult  to  sell  goods,  at  wholesale  or  retail, 
in  the  evening ;  that  the  plaintiff  went  out  of  business  on  September 
15th,  1858,  and  the  store  up  to  that  time  was  never  lighted  with  gas. 
The  following  question  was  put  by  the  plaintiff  to  one  of  his  wit- 
nesses, who  was  a  hardware  merchant :  "  Which  was  preferable  in 
the  plaintiff's  store  as  it  was  in  1856  and  1857,  gas  or  oil  to  light  it 
with  ? "  The  question  was  objected  to  by  the  defendant,  but  allowed, 
and  exception  taken.  Answer,  "  Gas.  In  the  shelf  hardware  busi- 
ness there  is  an  immense  variety  of  goods — a  great  many  sizes,  and 
by  having  gas  you  are  enabled  to  see  the  marks  better  than  by  any 
other  light ;  and  then  it  sets  the  articles  off  better ;  and  to  customers, 
the  most  pleasant  place  is  the  best  place  to  buy  goods.  I  noticed  the 
plaintiff's  establishment  before  the  gas  was  let  on.  It  appeared  from 
the  street  to  be  a  pretty  dingy  establishment.  I  think  many  cus- 
tomers would  be  likely  to  pass  by  his  store,  lighted  as  it  then  was. 
I  mean  strangers  or  transient  people.  I  should  think  it  would  be 
very  inconvenient  in  getting  out  goods  at  night.  Business  could 
not  be  done  as  rapidly  in  the  store  at  evening  with  oil  and  candle- 
light as  with  gas."  To  another  witness  the  question  was  put,  "  What 
is  the  mode  in  which  inconvenience  is  caused  by  doing  business  with 
candles  instead  of  gas  ?  Objection  overruled  and  exception  taken. 
Answer,  "  The  objection  is,  it  would  take  twenty  candles  to  get  the 
same  light  you  would  get  from  one  good  burner.  Snuffing  candles 
would  be  an  objection  ;  candles  would  be  greasy  ;  then  to  keep  store 
with  candles  you  would  have  to  keep  a  man  to  snuff  them."  To 
another  witness  the  question  was  put,  "  What  would  be  the  effect  on 
his  business  as  a  merchant  in  the  plaintiff's  locality,  should  he  dis- 
pense with  gas,  he  alone  being  deprived  of  it  ? "  Answer,  "  It  would 
injure  his  business."  Question,  "  How  ? "  Objections  to  both  ques- 
tions overruled  and  exceptions  taken.  Answer,  "  I  think  it  would 
lessen  the  attraction  of  the  store,  and  be  more  inconvenient  to  do 
business ;  it  is  considered  of  some  account  to  merchants  to  have  an 
attractive  store ;  it  would  be  more  inviting  to  customers  to  enter, 
and  attractive  to  remain  and  do  their  business."  Another  witness 
testified  that  he  was  a  hardware  merchant ;  that  there  is  a  necessity 
for  a  bright  light  in  the  evening,  in  laying  out  goods ;  that  bills  of 
goods  are  made  up  both  in  the  daytime  and  evening,  and  that  mark- 
ing could  not  be  done  as  speedily  at  evening  by  candle-light  as  by 
gas-light.  Another  witness  testified  that  he  was  foreman  in  the 
plaintiff's  tin  shop  (which  was  in  the  fourth  story  of  the  store),  in 


286  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

1857  and  1858  ;  "  that  the  shop  was  not  lighted  with  gas,  though  the 
fixtures  were  prepared  for  it ;  and  the  effect  of  not  having  gas  was, 
that  a  great  deal  of  the  time  they  could  not  do  the  work ;  that  they 
had  work  enough,  but  had  often  to  stop,  because  they  could  not  get 
along  with  the  light,  and  on  that  account  had  to  lose  jobs." 

The  court,  at  the  request  of  the  plaintiff,  charged  the  jury  four 
propositions,  of  which  the  first  and  third  relate  to  the  right  of  action 
only.  The  second  and  fourth  were  as  follows  :  "  2.  The  plaintiff,  if 
entitled  to  a  verdict,  should  have  such  damages  as  will  compensate 
him  for  the  pecuniary  loss,  and  also  for  the  inconvenience  and  an- 
noyance experienced  by  him  in  his  mercantile  business,  arising  out 
of  the  defendant's  refusal  to  furnish  gas  to  him.  4.  That  if  the 
jury  believed  the  testimony,  the  plaintiff  was  entitled  to  recover 
damages  of  the  defendant  for  its  not  furnishing  gas  for  the  whole 
period  of  time  from  the  7th  day  of  February,  1857,  up  to  the  time 
he  sold  out  his  business,  being  about  the  15th  of  September,  1858." 

Several  requests  by  the  defendant  for  instructions  to  the  jury, 
which  were  refused,  will  be  sufficiently  understood  from  the  opinion 
of  the  court. 

Verdict  for  the  plaintiff  for  $1,500  damages.  Motion  for  a  new 
trial,  because  the  verdict  was  excessive,  and  not  warranted  by  the 
evidence  or  the  law,  and  for  error  in  the  instructions  given  and  in 
the  refusal  to  give  the  instructions  asked  by  the  defendant.  Motion 
overruled,  and  judgment  on  the  verdict. 

By  the  Court,  Paine,  J. —  *  *  *  *  It  is  said  that  the  court 
erred  in  the  rule  of  damages.  It  told  the  jury  that  "  the  plaintiff,  if 
entitled  to  a  verdict,  should  have  such  damages  as  will  compensate 
him  for  the  pecuniary  loss,  and  also  for  the  inconvenience  and  an- 
noyance experienced  by  him  in  his  mercantile  business,  arising  out 
of  the  defendant's  refusal  to  furnish  gas  to  the  plaintiff." 

It  is  claimed  that  this  instruction  gave  the  plaintiff  punitive  or 
vindictive  damages.  But  we  think  this  is  clearly  not  so.  The  "  in- 
convenience and  annoyance"  occasioned  directly  by  the  wrongful 
act  or  refusal  of  the  defendant,  are  always  legitimate  items  in  esti- 
mating the  damages  in  actions  of  this  kind.  Vindictive  damages  are 
those  which  are  given  over  and  above  all  this,  as  a  punishment  for 
the  other  party.  In  actions  for  a  nuisance  the  damage  usually  con- 
sists almost  entirely  in  inconvenience  and  annoyance.  So  also  in 
many  other  actions  of  tort.  In  Ives  v.  Humphrey  (1  E.  D.  Smith, 
201)  the  court  says :  "  Even  if  the  plaintiff  be  confined  strictly  to 
compensation  for  the  injury  sustained  by  him,  the  jury  are  to  de- 
termine the  extent  of  the  injury  and  the  equivalent  damages,  in  view 


SHEPARD   v.   MILWAUKEE  GAS-LIGHT  COMrANY.  287 

of  all  the  circumstances  of  injury,  insult,  invasion  of  the  privacy  and 
interference  with  the  comfort  of  the  plaintiff  and  his  family."  And 
again  :  "  For  an  involuntary  trespass,  or  a  trespass  committed  under 
an  honest  mistake,  the  damages  should  be  confined  to  compensation 
for  the  injury  sustained  by  the  plaintiff,  and  in  estimating  the 
amount  of  such  damages,  all  of  the  particulars  wherein  the  plaintiff 
is  aggrieved  may  be  considered,  whether  of  pecuniary  loss,  or  pain 
or  insult,  or  inconvenience." 

So  in  an  action  for  refusing  to  let  a  lessee  into  possession,  the 
plaintiff  gave  evidence  of  injury  to  his  wife's  business  as  a  milliner, 
without  having  averred  it  specially ;  but  the  court  held  it  admissible 
under  the  general  allegation  of  damage,  as  going  to  show  that  "  the 
plaintiff  had  sustained  inconvenience  "  (Ward  v.  Smith,  11  Price,  19). 
But  it  seems  unnecessary  to  pursue  this  point,  as  it  is  really  very 
plain  that  an  instruction  that  the  jury  might  consider  the  inconven- 
ience and  annoyance  occasioned  to  the  plaintiff  by  the  wrong  of  the 
defendant,  is  not  equivalent  to  an  instruction  that  they  might  allow 
vindictive  damages. 

But  the  appellant  further  objects  to  the  admission  of  evidence 
to  show  that  it  would  injure  the  plaintiff's  business  to  be  deprived 
of  gas  when  other  stores  were  lighted  with  it.  It  is  said  that  the 
object  of  this  was  to  show  that  the  want  of  gas  would  tend  to  pre- 
vent customers  from  coming  to  the  store,  consequently  that  the 
plaintiff  lost  the  profits  that  he  otherwise  might  have  made.  And 
the  appellant  then  relies  on  a  class  of  authorities  in  which,  both  in 
actions  of  tort  and  for  breaches  of  contract,  it  has  often  been  held 
that  anticipated  profits  could  not  be  recovered  as  damages.  Upon 
this  subject  the  authorities  are  full  of  confusion  and  uncertainty,  and 
it  is  very  generally  conceded  that  no  definite  or  satisfactory  rule  can 
be  extracted  from  them  (Sedgwick  on  Dam.  112 ;  City  of  Cincinnati 
v.  Evans,  5  Ohio  St.  603).  But  I  think  it  can  by  no  means  be  said 
to  be  established,  that  the  profits  of  a  business  or  of  a  contract  may 
never  be  considered  in  estimating  the  damages,  where  one  party  has 
been  deprived  of  those  profits  by  the  wrong  or  default  of  another. 
On  the  contrary,  I  think  the  opposite  conclusion  is  sustained,  and 
that  the  tendency  of  the  recent  cases  is  to  allow  such  profits  to  be 
recovered  as  damages,  where  their  amount  can  be  shown  with  rea- 
sonable certainty. 

The  question  often  arises  in  cases  of  breach  of  contract,  and  there 
are  many  authorities  which  hold  that  the  profits  that  might  have  ac- 
crued to  the  injured  party  on  the  contract  itself,  which  was  broken, 
may  be  recovered  as  damages  (Kailroad  Company  v.  Howard,  13 


2S8  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

How.  [U.  S.]  344 ;  Masterton  v.  The  Mayor,  &c.  of  Brooklyn,  7 
Hill,  61  ;  Fox  v.  Harding,  7  Cush.  522).  These  cases  confine  the 
profits  to  be  recovered  to  such  as  might  have  been  made  on  the  con- 
tract, the  breach  of  which  is  complained  of. 

Yet  it  is  very  evident  that  even  such  profits  cannot  be  arrived  at 
with  any  absolute  certainty,  as  they  frequently  depend  upon  fluctua- 
tions in  the  market,  and  changes  in  the  price  of  labor  and  materials, 
which  may  take  place  while  the  contract  is  being  performed.  Yet 
inasmuch  as  they  may  be  estimated  with  reasonable  certainty,  and 
their  loss  is  the  direct  result  of  the  wrong  complained  of,  they  are 
allowed  to  be  recovered.  And  in  the  case  of  AVaters  v.  Powers  (20 
Eng.  Law  &  Eq.  410)  the  rule  was  extended  so  as  to  include  profits 
on  a  collateral  contract  which  the  plaintiffs  had  entered  into  with 
other  parties.  The  court  said,  "  if  reasonable  evidence  is  given  that 
the  amount  of  profit  would  have  been  made  as  claimed,  the  damages 
may  be  asked  accordingly." 

In  Hadley  v.  Baxendale  (26  Eng.  Law  &  Eq.  398)  the  defendant, 
who  was  a  common  carrier,  had  neglected  to  deliver  a  broken  shaft 
of  a  mill,  which  was  to  serve  as  a  model  for  the  making  of  a  new 
one,  by  reason  of  which  the  new  one  was  delayed  and  the  mill  kept 
idle  for  want  of  it.  It  appeared  that  the  facts  showing  that  such 
would  be  the  result  of  his  failure,  were  not  communicated  to  him, 
and  on  that  ground  the  court  held  that  the  plaintiffs  could  not  re- 
cover the  profits  which  the  mill  might  have  made  during  the  delay. 
But  it  was  held  that  if  those  facts  had  been  communicated  to  him, 
he  would  have  been  liable  for  the  profits.  In  Fletcher  v.  Tayleur 
(33  Eng.  Law  &  Eq.  187)  the  action  was  brought  for  damages  on  a 
failure  to  complete  a  vessel  at  the  time  contracted  for.  The  vessel 
was  designed  for  the  Australian  trade,  and  evidence  was  given  to 
show  what  would  have  been  her  probable  earnings  during  the  time 
of  the  delay  ;  and  the  jury  gave  a  verdict  which  evidently  included 
the  profits  that  might  have  been  made  during  that  period.  The 
court  refused  to  disturb  the  verdict,  and  though  it  is  stated  that  no 
question  upon  that  point  had  been  made  at  the  trial,  yet  the  decision 
does  not  seem  to  rest  upon  that  ground.  Jekvis,  C.  J.,  suggests  that 
there  should  be  some  general  rule,  and  that  the  damages  might 
be  "  estimated  according  to  the  average  percentage  of  mercantile 
profits,"  and  adds  that  such  is,  "  to  some  extent,  the  result  of  Had- 
ley v.  Baxendale."  Ceowder,  J.,  quotes  Alder  v.  Heighley  (16  M. 
&  W.  117),  in  which,  he  says,  the  court  lay  it  down  as  a  clear  rule, 
"  that  the  amount  which  would  have  been  received  if  the  contract 
had  been  kept,  is  the  measure  of  damages  if  the  contract  had  been 


SHEPARD   v.   MILWAUKEE  GAS-LIGHT  COMPANY.  2S9 

broken ; "  and  he  then  adds,  "  I  cannot  say  that  the  damages  in  this 
case  have  been  calculated  on  a  false  principle." 

I  think  the  principle  fairly  to  be  derived  from  these  cases  is,  that 
the  profits  lost  as  a  direct  result  of  a  breach  of  contract  may  be  re- 
covered as  damages,  where  they  are  not  so  conjectural  and  remote  as 
to  be  incapable  of  ascertainment  with  •  reasonable  certainty.  And 
their  reasoning  seems  entirely  applicable  to  this  case.  The  defend- 
ant here  knew  that  if  it  refused  gas  to  the  plaintiff,  he  could  get  it 
nowhere  else.  It  stood,  therefore,  in  the  same  position  that  the  car- 
rier would  have  been  in,  in  Hadley  v.  Baxendale,  if  he  had  known 
the  plaintiff  could  have  no  shaft  to  his  mill  until  the  model  was  de- 
livered. The  defendant,  therefore,  must  be  presumed  to  have  con- 
templated whatever  damage  would  naturally  arise  from  its  refusal  to 
furnish  the  plaintiff  with  gas.  Its  obligation  to  furnish  it  was, 
according  to  the  decisions  of  this  court,  as  clear  and  imperative  as 
though  it  had  expressly  contracted  to  do  it.  And  it  seems  to  me 
that  the  profits  of  an  established  business  are  quite  as  capable  of 
being  ascertained  with  reasonable  certainty  as  the  profits  to  arise 
from  a  single  contract  or  adventure.  There  is,  in  the  case  of  such 
business,  the  experience  of  the  past  to  serve  as  a  test.  And  the  rule 
suggested  by  Jeevis,  C.  J.,  in  Fletcher  v.  Tayleur,  that  the  damages 
should  be  estimated  "  according  to  the  average  percentage  of  mer- 
cantile profits,"  could  readily  be  applied,  and  would  seem  just  and 
reasonable.  The  cases  already  referred  to,  seem  to  me,  therefore, 
applicable  here,  and  to  sustain  the  conclusion  that  the  profits  of  a 
business,  which  are  necessarily  lost  by  the  wrong  or  default  of  an- 
other, may,  under  some  circumstances  and  with  proper  restrictions, 
be  considered  in  estimating  the  damages  for  the  injury. 

The  following  cases  also  sustain  the  same  conclusion :  Thompson 
v.  Jackson  et  al.  (11  B.  Mon.  114) ;  Davis  v.  Talcott  (14  Barb.  611 ; 
Sewall's  Falls  Bridge  v.  Fisk  et  al.  3  Fost,  [K  H.]  171 ;  Wade  v. 
Leroy  et  al.  32  How.  34).  It  seems  to  me  also  to  derive  very  clear 
support  from  the  following  considerations.  It  is  well  established 
that  an  action  exists  in  many  cases  for  an  injury  to  a  person's  trade. 
Actions  for  slandering  one  in  his  trade  or  profession  are  of  this  char- 
acter; and  the  damages  are  based  upon  the  assumption  that  such 
slander  injures  the  party's  business  by  diminishing  it.  But  how 
does  that  damage  him  ?  Clearly,  only  by  depriving  him  of  the 
profits  he  would  have  made  by  the  business,  of  which  he  has  been 
wrongfully  deprived.  So,  also,  of  private  actions  for  a  nuisance,  the 
only  injury  being  a  diminution  of  the  plaintiff's  business.  The 
establishment  of  a  fair,  or  market,  or  ferry  near  the  plaintiff's  so  as 
19 


290  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

to  withdraw  his  custom  and  diminish  his  profits,  are  illustrations  of 
this  class  (3  Wend.  Black.  218 ;  Aikin  v.  Western  R.  E.  Co.  20  K 
Y.  370 ;  Dewint  v.  Wiltse,  9  Wend.  325).  In  the  latter  case  the 
plaintiff  was  allowed  to  recover  the  rent  of  a  tavern  owned  by  him, 
and  which  became  tenantless  by  reason  of  the  defendant's  breach  of 
his  covenant  to  keep  a  ferry,  running  to  the  tavern,  supplied  with 
boats  for  the  accommodation  of  travelers.  In  Wilkes  v.  Market  Co. 
(29  E.  C.  L.  336),  the  plaintiff,  who  was  a  bookseller,  was  held  en- 
titled to  recover  for  damage  to  his  business  occasioned  by  the  de- 
fendant's leaving  certain  obstructions  in  the  street  on  which  his 
store  was  located,  for  an  unreasonable  length  of  time.  The  very 
ground  of  complaint  was,  that  the  obstructions  diminished  his  cus- 
tom, and  consequently  deprived  him  of  his  profits.  So  also  those 
actions  where  bankers  are  held  responsible  for  damages  for  not  pay- 
ing their  customers'  checks,  they  having  funds  on  hand,  are  based 
on  the  same  idea,  that  such  refusal  tends  to  injure  the  plaintiff's 
trade.  Thus  in  Eolin  v.  Steward  (25  Eng.  Law  &  Eq.  341),  the  de- 
fendant, a  banker,  having  funds  of  the  plaintiff,  had  refused  pay- 
ment of  three  checks  amounting  to  1111.  13s.  There  was  no  proof 
of  special  damage,  but  the  jury  returned  a  verdict  of  5001.  The 
court  refused  to  disturb  it,  on  the  ground  that  the  refusal  had  a  gen- 
eral tendency  to  injure  the  plaintiff's  trade,  and  that  the  jury  might 
properly  consider  that.  The  principle  of  that  action  seems  to  me 
very  similar  to  that  upon  which  this  should  be  sustained.  Now  all 
these  actions  seem  to  me  to  be  based  upon  no  other  idea  than  that 
the  plaintiff  had  suffered  injury  by  having  the  profits  of  his  business 
diminished.  And  if,  in  all  these,  an  injury  to  the  profits  is  capable 
of  being  ascertained  with  sufficient  certainty  to  be  made  the  ground 
of  damages,  I  can  see  no  reason  why  it  cannot  be  done  in  actions  for 
a  breach  of  contract,  or  a  wrongful  refusal  like  that  now  under  con- 
sideration. For  they  may  be  as  certainly  ascertained  in  one  class  of 
actions  as  in  another. 

There  are  two  cases  that  I  have  found,  which,  though  they  may 
seem,  to  some  extent,  opposed  to  the  conclusions  I  have  stated,  I 
still  think  really  sustain  them.  In  Marquart  v.  La  Farge  (5  Duer, 
559)  the  defendant  had  wrongfully  broken  up  the  plaintiff's  business 
in  a  restaurant.  The  plaintiff  gave  evidence  of  the  extent  of  his 
business,  and  that  "  one  half  the  receipts  were  profits."  The  court 
held  the  evidence  admissible.  It  said  :  "  Now  it  was  certainly  com- 
petent to  prove,  in  some  way,  the  nature  and  extent  of  the  injury, 
and  the  value  of  the  business  was  a  proper  subject  of  estimate  for 
the  jury."     They  then  add  :  "  It  may  be  that  a  calculation  of  possi- 


SHEPARD   v.   MILWAUKEE  GAS-LIGHT  COMPANY.  291 

ble  or  probable  profits,  in  view  of  the  ordinary  uncertainties  of  busi- 
ness, would  not  be  allowable."  If  by  this  the  court  meant  to  ex- 
clude all  consideration  of  the  profits  that  would  have  resulted  to  the 
plaintiff  according  to  the  ordinary  course  of  his  business,  it  seems  to 
me  repugnant  to  what  had  previously  been  expressly  allowed.  They 
had  allowed  evidence  of  what  the  profits  had  been ;  they  had  said 
that  the  jury  "  must  estimate  the  value  of  the  business,"  in  arriving 
at  the  amount  of  damages.  Now  I  think  it  is  impossible  for  any 
jury  or  judge  to  do  this,  without  considering  the  profits  of  that  busi- 
ness. The  same  remarks  seem  to  me  ajDplicable  to  the  case  of  Cin- 
cinnati v.  Evans  (5  Ohio  St.  594).  There  the  defendant  had  torn 
down  the  front  part  of  the  shop  of  the  plaintiff,  who  was  a  merchant 
tailor,  thus  interrupting  his  business.  The  court  held  that  "  the 
rentable  value  of  the  building  would  not  be  a  compensation  ; "  that 
the  defendants  "must  have  contemplated  a  further  injury  as  the 
necessary  consequence  of  their  acts,  and  for  that  further  injury  he  is 
entitled  to  recover."  They  then  say  that  the  "  supposed  or  contem- 
plated profits  of  the  business"  during  the  period  of  interruption, 
could  not  be  considered  as  a  measure  of  the  injury,  and  proceed  as 
follows :  "  Upon  the  whole,  we  are  of  opinion  that  in  addition  to  the 
damages  done  to  the  building,  he  was  entitled  to  recover  such  fur- 
ther sum  as  would  compensate  him  for  the  loss  of  its  enjoyment 
while  the  interruption  continued."  And  strangely,  as  it  seems  to 
me,  they  then  add  that  "  the  profits  which  might  have  been  realized 
by  employing  his  personal  services  and  capital  in  the  prosecution  of 
his  business  in  the  injured  building  during  the  period  for  which  he 
was  deprived  of  its  use,  cannot  be  recovered."  If  that  is  so,  why 
allow  him  to  show  "  the  nature  and  extent  of  his  business,"  or  "  the 
necessity  of  using  the  building  for  its  prosecution  ? "  These  matters 
seem  entirely  immaterial,  except  with  a  view  of  showing  the  amount 
of  damage  from  the  interruption  of  that  business.  They  are  mate- 
rial to  this  purpose  only  so  far  as  they  tend  to  show  how  much  the 
plaintiff  lost  by  the  interruption.  And  it  is  obvious  to  every  mind 
that  he  lost  the  profits  he  would  have  made  if  the  interruption  had 
not  occurred.  How  could  he  prove  "the  value  of  the  business  to 
him  "  without  showing  the  amount  of  profits  he  would  have  realized 
according  to  its  ordinary  course  ?  How  could  that  value  be  esti- 
mated without  including  an  estimate  of  the  profits  ?  If  there  is  any 
process  by  which  it  may  be  done,  I  confess  my  inability  to  perceive 
it ;  and  it  seems  to  me,  therefore,  that  when  the  court  grants  the 
former  and  then  undertakes  to  reserve  the  latter,  the  reservation  is 
repugnant  to  the  grant,  and  void.    It  seems  to  get  at  the  same  result 


292       CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

by  simply  calling  it  by  another  name.  But  whether  or  not  my  criti- 
cism on  these  cases  is  well  founded,  I  may  here  remark  that  they 
both  sustain  the  admissibility  of  all  the  evidence  which  was  offered 
by  the  plaintiff  in  this  case.  He  only  showed  the  nature  and  extent 
of  his  business,  and  the  tendency  of  the  defendant's  wrongful  refusal, 
to  injure  that  business.  He  did  not  offer  to  calculate  the  amount  of 
profits  of  which  he  was  deprived,  but  left  the  jury  to  judge  from 
such  facts  as  both  of  these  cases  held  might  be  shown,  what  was  the 
extent  of  the  injury ;  though  I  candidly  confess  I  cannot  see  why 
these  facts  are  held  admissible  at  all,  except  as  a  means  of  showing 
the  plaintiff's  damage  in  the  loss  of  the  profits  of  his  business.  Per- 
haps many  of  the  cases  which  seem  to  sustain  the  general  rule,  that 
profits  cannot  be  recovered,  may  be  explained  upon  the  principle 
that  the  plaintiff  might,  by  reasonable  diligence,  have  avoided  the 
loss,  or  else  upon  the  principle  which  Hadley  v.  Baxendale  decided, 
that  the  loss  grew  out  of  some  unusual  and  special  circumstances, 
which  were  not  known  to  the  defendant.  But  subject  to  these 
qualifications,  I  think  the  authorities  fairly  sustain  the  conclusion, 
that  the  unavoidable  loss  of  profits  which  the  party  committing  the 
injury  must  be  presumed  to  have  contemplated,  may  in  actions  of 
this  kind,  be  considered  in  estimating  the  damages. 

I  think  there  was  no  error  in  admitting  the  evidence  objected  to. 
The  only  other  question  is,  whether  there  was  error  in  ruling 
that  the  plaintiff  was  entitled  to  recover  damages  down  to  the  time 
of  commencing  the  suit.  We  think  there  was  none.  It  is  true,  he 
had  not  tendered  pay  for  all  that  time.  But  it  was  not  for  want  of 
compliance  with  the  terms  of  the  company  as  to  pay,  that  he  was 
refused  the  gas.  Their  rules  did  not  require  pay  in  advance,  but 
they  reserved  the  right  to  demand  it,  or  security  when  they  deemed 
it  necessary.  They  never  demanded  either  of  the  plaintiff.  But 
they  refused  to  let  him  have  gas  for  refusing  to  comply  with  other 
terms  which  they  had  no  right  to  impose,  and  told  him  he  could  not 
have  it  until  he  complied  with  those  terms.  Having  placed  them- 
selves upon  that  position,  the  plaintiff  had  a  right  to  assume  that 
they  stood  there,  until  notified  to  the  contrary.  Their  refusal  was  a 
continual  refusal  until  retracted.  And  we  think  it  would  be  unrea- 
sonable to  say  that  the  plaintiff  was  bound  to  repeat  his  demand 
after  such  a  refusal,  in  order  to  entitle  him  to  damages.  His  first 
demand  was  a  sufficient  indication  to  the  company  that  he  was  ready 
to  comply  with  their  terms  as  far  as  payment  was  concerned,  and  if 
they  afterwards  changed  their  minds,  they  should  have  notified  the 
plaintiff  accordingly. 

The  judgment  is  affirmed,  with  costs. 


CORY  v.  THAMES  IRON  WORKS  COMPANY.  293 


Contract  of  Sale  understood  by  the  Vendor  to  be  intended  for 
a  special  Purpose  which  was  not  that  actually  intended  by 
the  Vendee-. 


COURT  OF  QUEENS  BENCH. 

[1868.]    Cory  v.  Thames  Iron  Works  Co.  (L.  E.  3  Q.  B.  181). 

(,  Where,  on  the  sale  of  a  chattel,  the  buyer  intends  it  for  a  special  purpose,  but  the  seller 
supposes  it  is  for  another  and  more  obvious  purpose,  the  buyer  can  recover,  as  dam- 
ages for  the  non-delivery  according  to  the  contract,  the  loss  of  profit  which  might 
have  been  made  from  the  purpose  supposed  by  the  seller,  provided  the  buyer  has 
actually  sustained  damages  to  that  or  a  greater  amount.] 
The  defendants  agreed  to  sell  and  deliver  to  the  plaintiffs  within  a  certain  time  the  hull 
of  a  floating  boom  derrick  ;  but  they  did  not  deliver  it  till  six  months  after  the  speci- 
fied time.  The  plaintiffs,  who  were  large  coal  merchants  in  the  port  of  London,  pur- 
chased the  hull  in  order  to  place  in  it,  as  they  in  fact  did,  large  hydraulic  cranes  and 
machinery  for  the  purpose  of  transshipping  their  coals  direct  from  colliers  into  barges- 
The  hull  was  the  first  vessel  of  the  kind  ever  built,  and  the  plaintiffs'  special  purpose 
was  entirely  novel,  and  was  unknown  to  the  defendants.  The  defendants  believed 
that  the  plaintiffs  were  purchasing  the  hull  for  the  purpose  of  using  her  as  a  coal 
store.  If  the  plaintiffs  had  been  prevented  using  the  hull  for  their  special  purpose, 
they  would  either  have  sold  her  to  be  used  in  the  hulk  trade,  as  a  coal  store,  or,  if 
unable  to  do  so,  would  have  used  her  themselves  as  a  store,  and  this  was  the  most 
obvious  use  to  which  such  a  vessel  was  capable  of  being  applied  by  persons  in  the 
coal  trade :  but  the  hulk  trade  is  a  distinct  branch  of  the  coal  trade,  and  was  no  part 
of  the  plaintiffs'  business.  Had  the  hull  been  purchased  for  this  purpose,  the  delay 
in  the  delivery  would  have  occasioned  loss  to  the  amount  of  420/.  The  plaintiffs 
actually  suffered  damage  to  a  much  larger  amount  from  not  having  the  hull  ready 
for  their  special  purpose  at  the  time  fixed  for  the  delivery : 
}L Jil,  that  the  plaintiffs  were  entitled  to  the  420/.  as  the  damages  which  the  defendants 
must  be  taken  to  have  contemplated  would  result  from  non-performance  of  their 
contract. 

This  was  an  issue  directed  by  the  Court  of  Chancery,  under  8  & 
9  Vict,  c  109,  to  ascertain  the  amount  of  damages  to  which  the 
plaintiffs  were  entitled,  inter  alia,  by  reason  of  the  delay  by  the  de- 
fendants in  the  deliYery  of  the  hull  of  a  floating  boom  derrick,  under 
a  contract  of  sale. 

At  the  trial  before  Shee,  J.,  at  the  sittings  in  London,  after 
Hilary  term,  1864,  a  verdict  was  taken  for  the  plaintiffs,  subject  to 
a  case  to  be  stated  by  an  arbitrator. 

1.  The  plaintiffs  are  coal  merchants  and  ship  ovmers,  having  a 
very  large  import  trade  in  coal  from  Newcastle  and  other  places  into 
the  port  of  London.  The  defendants  are  iron  manufacturers  and 
ship  builders  in  London. 


294  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

2.  The  plaintiffs  had  introduced,  at  the  docks  where  they  dis- 
charged the  cargoes  of  coal  from  their  ships,  a  new  and  expeditious 
mode  of  unloading  the  coals  by  means  of  iron  buckets,  which  were 
worked  by  hydraulic  pressure  over  powerful  cranes,  and  the  plaint- 
iffs' trade  having  considerably  increased,  they  were  desirous  of  im- 
proving the  accommodation  offered  in  the  discharge  of  their  vessels 
by  the  above  mode.     This  the  defendants  were  not  aware  of. 

3.  The  defendants  had  been  building  for  the  Patent  Derrick 
Company  the  hull  of  a  large  vessel  called  a  patent  boom  derrick, 
which  was  constructed  and  fitted  with  heavy  and  powerful  ma- 
chinery for  raising  sunken  vessels  or  other  similar  purposes  requir- 
ing great  power.  The  derrick  was  a  large  flat-bottomed  iron  vessel 
or  float,  250  feet  long  by  90  feet  wide  and  14  feet  deep,  divided  by 
iron  bulkheads  of  great  strength  into  more  than  eighty  compart- 
ments, measuring  generally  15  feet  long  by  13  feet  wide ;  she  was 
decked  over  all,  and  had  hatchways  leading  from  the  deck  to  the 
interior. 

4.  During  the  constructing  of  this  vessel  the  Derrick  Company 
became  insolvent,  and  as  the  defendants  could  not  obtain  payment 
for  the  vessel,  they  were  obliged  to  take  it  upon  their  own  hands, 
and  sell  it  for  the  best  price  they  could  obtain. 

5.  On  the  1st  of  October,  1861,  the  plaintiffs  entered  into  the 
following  agreement  with  the  defendants  :  The  defendants  agree  to 
sell,  and  the  plaintiffs  agree  to  purchase  "  for  the  sum  of  3,500?.,  the 
hull  of  the  floating  boom  derrick  now  lying  in  Bugsby's  Hole  in  the 
river  Thames.  It  is  agreed  between  the  parties  hereto  that  payment 
shall  be  made  in  the  following  manner,  that  is  to  say,  the  sum  of 
350?.  at  the  signing  of  this  memorandum,  a  further  sum  of  $1,400?. 
when  possession  is  given,  which  is  to  be  given  within  three  months 
from  the  date  hereof,  and  the  sum  of  1,750?.  by  a  bill  of  exchange 
to  be  dated  on  the  day  when  possession  is  given,  and  to  be  drawn  at 
six  months'  date  "  by  the  defendants,  and  accepted  by  the  plaintiffs. 
The  defendants  were  to  be  at  liberty  to  sell  the  tripod,  boom,  and 
other  machinery  in  the  hull. 

6.  The  plaintiffs  purchased  the  derrick  for  the  purposes  of  their 
business,  in  order  to  erect  and  place  in  it,  as  they  in  fact  did,  large 
hydraulic  cranes  and  machinery,  such  as  they  had  previously  used  at 
the  docks,  and  by  means  of  these  cranes  to  transship  their  coals  from 
colliers  into  barges  without  the  necessity  for  any  intermediate  land- 
ing, the  derrick,  for  this  purpose,  being  moored  in  the  river  Thames, 
and  the  plaintiffs  paying  the  conservators  of  the  river  a  large  rent 
for  allowing  it  to  remain  there. 


CORY  v.  THAMES  IRON  WORKS  COMPANY.  295 

7.  The  derrick  was  the  first  vessel  of  the  kind  that  had  ever 
been  built  in  this  country,  and  the  purpose  to  which  the  plaintiffs 
sought  to  apply  it  was  entirely  novel  and  exceptional.  ISTo  hull  or 
other  vessel  had  ever  been  fitted,  either  by  coal  merchants  or  others, 
in  a  similar  way  or  for  a  similar  purpose ;  and  the  defendants,  at  the 
date  of  the  agreement,  had  notice  that  the  plaintiffs  purchased  the 
derrick  for  the  purpose  of  their  business,  considering  that  it  was  in- 
tended to  be  used  as  a  coal  store  ;  but  they  had  no  notice  or  knowl- 
edge of  the  special  object  for  which  it  was  purchased  and  to  which 
it  was  actually  applied. 

8.  At  the  date  of  the  agreement  the  defendants  believed  that  the 
plaintiffs  were  purchasing  the  derrick  for  the  purpose  of  using  her 
in  the  way  of  their  business  as  a  coal  store ;  but  the  plaintiffs  had 
not  at  that  time  any  intention  of  applying  the  derrick  to  any  other 
purpose  than  the  special  purpose  to  which  she  was  in  fact  afterwards 
applied. 

9.  If  the  plaintiffs  had  been  prevented  from  applying  the  derrick 
to  the  special  purpose  for  which  she  was  purchased,  and  to  which 
she  was  applied,  they  would  have  endeavored  to  sell  her  to  persons 
in  the  hulk  trade,  as  a  hulk  for  storing  coals ;  and  had  they  been 
unable  to  sell  her,  they  could  and  would  have  employed  her  in 
that  trade  and  in  that  way  themselves.  That  was  the  most  ob- 
vious use  to  which  such  a  vessel  was  capable  of  being  applied  by 
persons  in  the  plaintiffs'  business ;  but  the  hulk  trade  is  a  distinct 
branch  of  the  coal  trade,  and  neither  formed  nor  forms  any  part  of 
the  business  carried  on  by  the  plaintiffs  ;  and  the  derrick  being  an 
entirely  novel  and  exceptional  vessel,  and  the  first  of  the  kind 
built,  no  vessel  of  the  sort  had  ever  been  applied  to  such  a  purpose. 
The  derrick  was,  however,  capable  of  being  applied  to  and  profit- 
ably employed  for  that  purpose,  and  had  she  been  purchased  for 
that  purpose,  her  non-delivery  at  the  time  fixed  by  the  agreement 
would  have  occasioned  loss  and  damage  to  the  plaintiffs  to  the 
amount  of  4:201. 

10.  Great  difficulty  was  experienced  in  removing  the  tripod  and 
other  things  from  the  hull,  in  consequence  of  their  enormous  weight 
and  size,  and  the  hull  was  not  cleared  until  the  latter  end  of  May, 
1862,  when  it  was  found  that  some  damage  had  been  done  to  the 
bottom  and  other  parts  of  the  vessel  in  the  course  of  removing  the 
machinery. 

11.  Upon  the  hull  being  cleared,  the  defendants  gave  notice  to 
the  plaintiffs  that  they  were  ready  to  deliver  it  to  them. 

12.  The  plaintiffs,  however,  refused  to  receive  the  hull  until  the 


296  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

damage  had  been  properly  repaired,  and  some  difference  arose  be- 
tween the  respective  surveyors  of  the  plaintiffs  and  defendants  as  to 
the  extent  of  the  injury,  and  the  proper  mode  of  repairing  it.  The 
plaintiffs  continued  to  make  objections  to  the  sufficiency  of  the  re- 
pairs until  the  1st  of  July,  1862,  when  the  vessel  was  delivered. 

13.  The  plaintiffs,  on  the  1st  of  October,  1861,  duly  paid  to  the 
defendants  3501.,  in  part  payment  of  the  purchase  money,  and  they 
also  duly  paid  the  remainder  of  the  purchase  money  at  the  time 
when  the  hull  was  delivered  to  them. 

14.  The  three  months  within  which,  according  to  the  terms  of 
the  agreement,  the  defendants  were  to  give  up  to  the  plaintiffs 
possession  of  the  hull,  expired  on  the  1st  of  January,  1862 ;  but  the 
defendants  did  not  deliver  it  to  the  plaintiffs  until  the  1st  of  July, 
1862. 

15.  The  injury  caused  to  the  hull  in  the  removal  of  the  machin- 
ery depreciated  her  to  the  amount  of  501. 

16.  The  plaintiffs,  in  anticipation  of  the  delivery  of  the  hull  in 
January,  1862,  entered  into  a  contract  with  Sir  William  Armstrong 
for  the  construction  and  delivery  to  them,  at  a  very  heavy  outlay,  of 
the  necessary  machinery  for  the  purpose  for  which  they  purchased 
the  hull ;  and  in  consequence  of  the  delay  in  the  delivery  of  the 
hull  by  the  defendants,  the  plaintiffs  were  prevented  from  taking 
delivery  of  the  machinery  from  Sir  William  Armstrong ;  and  the 
plaintiffs,  on  the  25th  of  July,  1862,  paid  to  Sir  William  Armstrong 
3,000/.,  the  interest  of  which  was  lost  to  them.  The  plaintiffs  also 
purchased,  at  a  large  cost,  two  steam  tugs  to  be  used,  in  conjunction 
with  the  hull,  in  towing  the  coal  barges  to  and  from  the  same ; 
and  which  steam  tugs  were  comparatively  useless  to  the  plaintiffs 
during  the  time  in  which  the  hull  was  undelivered,  and  the  interest 
of  the  money  expended  on  the  same  was  lost  to  the  plaintiffs  ;  but 
none  of  the  circumstances  were  known  to  the  defendants. 

17.  If  the  defendants  had  delivered  the  hull  to  the  plaintiffs  in 
proper  time,  the  plaintiffs  would  have  realized  large  profits  by  the 
use  of  it  in  the  aforesaid  manner,  and  they  were  put  to  great  incon- 
venience, and  sustained  great  loss,  owing  to  their  not  having  posses- 
sion of  the  hull  to  meet  the  great  increase  in  their  trade. 

18.  The  plaintiffs  also  lost  81.  15s.  for  interest  upon  the  portion 
of  the  purchase  money  of  the  hull  paid  by  them  to  the  defendants 
before  delivery. 

The  question  for  the  opinion  of  the  court  was,  whether  the 
plaintiffs  were  entitled  to  recover  against  the  defendants  the  whole 
or  any,  and  which  of  the  above  heads  of  damage. 


CORY  v.  THAMES  IRON  WORKS  COMPANY.  297 

J.  Brown,  Q.  C.  (  Watkin  Williams  with  him),  for  the  plaintiffs. — 
The  question  is,  To  what  amount  of  damages  the  plaintiffs  are  enti- 
tled by  reason  of  the  delay  by  the  defendants,  for  six  months,  in  the 
delivery  of  the  hull  of  the  derrick  %  It  appears  from  paragraphs  6-9 
that  the  hull  itself  was  a  novelty  on  the  Thames,  and  the  special 
purpose  for  which  the  plaintiffs  bought  it,  viz.,  to  transship  coal,  by 
means  of  hydraulic  cranes,  direct  from  the  colliers  to  barges,  was 
also  a  novelty,  and  unknown  to  the  defendants ;  but  it  also  appears 
that  the  defendants  knew  that  the  hull  was  to  be  used  by  the  plaint- 
iffs for  some  purpose  connected  with  their  coal  trade  ;  and  the  de- 
fendants supposed  that  it  was  to  be  used  as  a  hulk  for  storing  coals, 
which  was  the  obvious  use  to  which  it  might  be  applied ;  and  if  it 
had  been  put  to  this  latter  use,  the  arbitrator  finds  that  the  delay  in 
the  delivery  would  have  caused  a  loss  to  the  plaintiffs  of  4201.  The 
plaintiffs  sustained,  in  fact,  a  much  greater  loss  from  not  having  the 
hull  ready  for  their  special  purpose  (paragraphs  16,  17) ;  but  it  must 
be  admitted  that  the  plaintiffs,  according  to  the  decision  in  Hadley 
v.  Baxendale  (9  Ex.  341;  23  L.  J.  Ex.  179),  are  not  entitled  to 
claim  this  greater  measure  of  damages,  as  the  defendants  were  not 
aware  of  the  special  purpose  for  which  the  hull  was  bought.  How- 
ever, the  plaintiffs  are  entitled,  in  conformity  with  the  decision  in 
that  case,  to  the  420/.,  as  that  is  the  amount  of  damages  which  may 
reasonably  be  considered  as  arising  naturally  from  the  breach  of  con- 
tract. The  plaintiffs  would,  at  all  events,  clearly  be  entitled  to  the 
interest  on  their  purchase  money  (paragraph  18). 

[Blackburn,  J. — In  the  alternative  of  their  not  being  entitled  to 
the  420/.] 

Yes ;  and  also  to  the  50/.  deterioration  (paragraph  15).  But  the 
main  question  is  as  to  the  420/.,  and  the  mere  reading  of  statement 
of  the  arbitrator,  in  paragraphs  6-9,  shows  that  the  plaintiffs  are  en- 
titled to  this. 

The  court  then  called  upon 

J.  D.  Coleridge,  Q.  C.  {Garth,  Q.  C,  and  Pliilbrick  with  him), 
for  the  defendants. — No  doubt  the  plaintiffs  are  entitled  to  the  in- 
terest, in  the  alternative,  and  to  the  50/. ;  but  they  are  not  entitled 
to  the  420/.  This  sum  is  the  damages  resulting  from  a  special  pur- 
pose, within  the  principle  of  Hadley  v.  Baxendale  (9  Ex.  341 ;  23  L. 
J.  Ex.  179),  just  as  much  as  the  larger  sum,  which  the  plaintiffs 
admit  they  cannot  claim.  The  rule  laid  down  in  Hadley  v.  Baxen- 
dale (9  Ex.  341 ;  23  L.  J.  Ex.  179)  is  a  substantial,  and  not  merely 
technical  rule,  viz.,  that  you  are  to  endeavor  to  ascertain  the  real 
amount  of  damages  that  the  plaintiff  has  sustained,  and  if  it  is  just 


298  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

and  reasonable  that  the  defendant  should  make  good  this  amount, 
he  must  pay  it ;  provided  that  if  he  had  no  notice  of  any  circum- 
stance which  makes  the  plaintiff's  loss  greater  than  it  ordinarily 
would  be,  he  cannot  be  called  upon  to  pay  this  extra  damage  ;  and 
the  Court  of  Exchequer  say,  if  this  limit  were  not  put,  there  would 
be  no  limit  to  what  defendants,  in  certain  circumstances,  might  be 
called  upon  to  pay ;  and  therefore,  say  the  court,  in  order  to  re- 
cover from  the  vendor  the  damage  accruing  on  account  of  some 
special  sub-contract  or  other  circumstance,  the  vendee  must  affect 
him  with  notice.  And  the  coiirt  lay  clown  the  rule  that  the 
plaintiff  can  only  recover  such  damages  as  are  the  natural  result  of 
the  breach  of  contract  in  ordinary  circumstances,  or — which  would 
appear  to  be  another  mode  of  expressing  the  same  thing — what 
were  in  the  contemplation  of  both  parties  at  the  time  of  the  con- 
tract. 

[Blackburn,  J. — The  damages  are  to  be  what  would  be  the  nat- 
ural consequences  of  a  breach  under  circumstances  which  both  parties 
were  aware  of.] 

Accepting  that  as  the  statement  of  the  law,  what  are  the  facts 
here  %  The  subject-matter  of  the  contract  is  entirely  novel ;  and  the 
purpose  for  which  it  was  intended  to  be  used,  in  point  of  fact,  was 
entirely  novel  and  exceptional ;  but  any  use  of  this  hull  would  be 
novel  and  exceptional,  so  that  the  450£.  comes  as  much  within  the 
rule  in  Hadley  v.  Baxenclale  (9  Ex.  341 ;  23  L.  J.  Ex.  179)  as  the 
other  and  larger  loss  actually  sustained. 

[Cockbukn,  C.  J. — 'No  doubt,  in  order  to  recover  damage  arising 
from  a  special  purpose,  the  buyer  must  have  communicated  the 
special  purpose  to  the  seller ;  but  there  is  one  thing  which  must  al- 
ways be  in  the  knowledge  of  both  parties,  which  is,  that  the  thing 
is  bought  for  the  purpose  of  being,  in  some  way  or  other,  profitably 
applied.] 

~No  doubt ;  but  the  arbitrator  has  not  found  that.  He  finds  the 
special  purpose  for  which  the  hull  was  bought,  and  to  which  it  was 
in  fact  applied,  and  also  the  amount  of  damage  which  the  plaint- 
iffs would  have  suffered  had  they  applied  it  to  another  special 
purpose. 

[Blackburn,  J. — Yes ;  but  the  arbitrator  (paragraphs  8  and  9) 
says  that  was  the  most  obvious  purpose,  and  the  one  to  which  the 
defendants  supposed  the  hull  was  intended  to  be  applied.] 

But  it  is  a  use  totally  distinct  from  that  to  which  the  plaintiffs 
applied  and  intended  to  apply  it. 

[Cockbuen,  C.  J. — The  two  parties  certainly  had  not  in  their 


CORY  v.  THAMES  IRON  WORKS  COMPANY.  299 

common  contemplation  the  application  of  this  vessel  to  any  one 
specific  purpose.  The  plaintiffs  intended  to  apply  it  in  their  trade, 
but  to  the  special  purpose  of  transshipping  coals  ;  the  defendants  be- 
lieved that  the  plaintiffs  would  apply  it  to  the  purpose  of  their 
trade,  but  as  a  coal  store.  I  cannot,  however,  assent  to  the  proposi- 
tion that,  because  the  seller  does  not  know  the  purpose  to  which  the 
buyer  intends  to  apply  the  thing  bought,  but  believes  that  the  buyer 
is  going  to  apply  it  to  some  other  and  different  purpose,  if  the 
buyer  sustains  damage  from  the  non-delivery  of  the  thing,  he  is  to 
be  shut  out  from  recovering  any  damages  in  respect  of  the  loss  he 
may  have  sustained.  I  take  the  true  poposition  to  be  this.  If  the 
special  purpose  from  which  the  larger  profit  may  be  obtained  is 
known  to  the  seller,  he  may  be  made  responsible  to  the  full  extent. 
But  if  the  two  parties  are  not  ad  idem  quoad  the  use  to  which  the 
article  is  to  be  applied,  then  you  can  only  take  as  the  measure  of 
damages  the  profit  which  would  result  from  the  ordinary  use  of  the 
article  for  the  purpose  for  which  the  seller  supposed  it  was  bought. 
And  the  arbitrator,  as  I  understand  it,  finds  that  the  hull  was  capable 
of  being  applied  profitably  as  a  coal  store,  if  it  had  not  been  applied 
by  the  plaintiffs  to  their  special  purpose.] 

But  no  vessel  of  the  sort  had  ever  been  applied  to  such  a  pur- 
pose as  a  coal  store.  And  this  kind  of  damage  is  a  damage  which 
the  plaintiffs  never  suffered,  and  which  they  never  contemplated 
suffering. 

[Melloe,  J. — It  was  the  most  obvious  purpose  to  which  such  a 
vessel  could  be  applied  in  the  plaintiffs'  trade.] 

[Cockbukn,  C.  J. — And  the  purpose  to  Which  it  may  be  fairly 
supposed,  and  as  in  fact  the  defendants  did  suppose,  that  the  plaint- 
iffs would  have  applied  it,  had  they  been  prevented,  by  the  failure 
of  the  machinery  or  any  other  cause,  from  being  able  to  apply  it  to 
their  special  purpose.  And  so  far  as  the  defendants,  the  sellers,  ex- 
pected that  the  plaintiffs,  the  buyers,  would  be  losers  by  their  non- 
delivery of  the  vessel  according  to  contract,  so  far  it  is  just  and 
right  that  the  defendants  should  be  responsible  in  damages.] 

That,  no  doubt,  would  be  a  just  rule  ;  but  it  is  not  the  rule  laid 
down  in  Haclley  v.  Baxendale  (9  Ex.  341 ;  23  L.  J.  Ex.  179). 

[Blackburn,  J. — That  argument  seems  to  assume  that  the  prin- 
ciple laid  down  in  Hadley  v.  Baxendale  is,  that  the  damages  can  only 
be  what  both  parties  contemplated,  at  the  time  of  making  the  con- 
tract, would  be  the  consecpiience  of  the  breach  of  it ;  but  that  is  not 
the  principle  laid  down  in  Hadley  v.  Baxendale.  The  court  say : 
"  We  think  the  proper  rule  in  such  a  case  as  the  present  is  this — 


300  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

Where  two  parties  have  made  a  contract,  which  one  of  them  has 
broken,  the  damages  which  the  other  party  ought  to  receive  in  re- 
spect of  such  breach  of  contract  should  be  such  as  may  fairly  and 
reasonably  be  considered,  either  arising  naturally,  i.  e.  according  to 
the  usual  course  of  things,  from  such  breach  of  contract  itself," — 
that  is  one  alternative — "  or  such  as  may  reasonably  be  supposed  to 
have  been  in  the  contemplation  of  both  parties,  at  the  time  they 
made  the  contract,  as  the  probable  result  of  the  breach  of  it." 
Now,  in  the  present  case,  the  breach  of  contract  was  the  non- 
delivery at  the  agreed  time  of  a  hull  capable  of  being  used  as  a 
hulk  for  storing  coals  ;  and  the  consequences  that  would  naturally 
arise  from  such  non-delivery  of  it  would  be  that  the  purchaser 
would  not  be  able  to  earn  money  by  its  use,  and  this  loss  of  profit 
during  the  delay  would  be  the  measure  of  the  damages  caused  by 
the  non-delivery.] 

But  the  purpose  supposed  by  the  defendants  was  not  part  of  the 
business  of  the  plaintiffs,  the  hulk  trade  being  a  distinct  branch ;  so 
that  it  is  impossible  to  say  that  the  loss  of  profit  which  might  have 
been  derived  from  this  supposed  purpose  could  have  reasonably  been 
contemplated  as  the  natural  consequence  of  the  defendants'  breach 
of  contract. 

[Melloe,  J. — That  is  tying  down  the  arbitrator's  finding  too 
strictly.  There  must  be  some  profitable  purpose,  and  this  was  the 
most  obvious  profitable  purpose.  Suppose  there  are  two  equally 
profitable  but  distinct  modes  of  using  the  same  thing,  and  the  buyer 
contemplates  one  use,  and  the  seller  the  other,  it  is  not  because  the 
one  party  contemplated  one  use,  and  the  other  the  other,  that  the 
buyer  is  not  to  get  any  damages  at  all.] 

The  answer  is,  such  a  case  is  not  within  the  rule  in  Hadley  v. 
Baxendale. 

Cockbuen,  C.  J. — I  think  the  construction  which  Mr.  Coleridge 
seeks  to  put  upon  the  case  of  Hadley  v.  Baxendale  is  not  the  cor- 
rect construction  as  applicable  to  such  a  case  as  this.  If  that  were 
the  correct  construction,  it  would  be  attended  with  most  mischievous 
consequences,  because  this  would  follow,  that  whenever  the  seller 
was  not  made  aware  of  the  particular  and  special  purpose  to  which 
the  buyer  intended  to  apply  the  tiling  bought,  but  thought  it  was 
for  some  other  purpose,  he  would  be  relieved  entirely  from  making 
any  compensation  to  the  buyer,  in  case  the  thing  was  not  delivered 
in  time,  and  so  loss  was  sustained  by  the  buyer ;  and  it  would  be  en- 
tirely in  the  power  of  the  seller  to  break  his  contract  with  impunity. 
That  would  necessarily  follow,  if  Mr.  Coleridge's  interpretation  of 


CORY  v.  THAMES  IRON  WORKS  COMPANY.  301 

Hadley  v.  Baxendale  was  the  true  interpretation.  My  brother 
Blackburn  has  pointed  out  that  that  is  not  the  true  construction  of 
the  language  which  the  court  used  in  delivering  judgment  in  that 
case.  As  I  said  in  the  course  of  the  argument,  the  true  principle  is 
this,  that  although  the  buyer  may  have  sustained  a  loss  from  the 
non-delivery  of  an  article  which  he  intended  to  apply  to  a  special 
purpose,  and  which,  if  applied  to  that  special  purpose,  would  have 
been  productive  of  a  larger  amount  of  profit,  the  seller  cannot  be 
called  upon  to  make  good  that  loss,  if  it  was  not  within  the  scope  of 
his  contemplation  that  the  thing  would  be  applied  to  the  purpose 
from  which  such  larger  profit  might  result ;  and  although,  in  point 
*  of  fact,  the  buyer  does  sustain  damage  to  that  extent,  it  would  not 
be  reasonable  or  just  that  the  seller  should  b  e  called  upon  to  pay  it 
to  that  extent ;  but  to  the  extent  to  which  the  seller  contemplated 
that,  in  the  event  of  his  not  fulfilling  his  contract  by  the  delivery 
of  the  article,  the  profit  which  would  be  realized  if  the  article  had 
been  delivered  would  be  lost  to  the  other  party,  to  that  extent  he 
ought  to  pay.  The  buyer  has  lost  the  larger  amount,  and  there  can 
be  no  hardship  or  injustice  in  making  the  seller  liable  to  compensate 
him  in  damages  so  far  as  the  seller  understood  and  believed  that  the 
article  would  be  applied  to  the  ordinary  purposes  to  which  it  was 
capable  of  being  applied.  I  think,  therefore,  that  ought  to  be  the 
measure  of  damages,  and  I  do  not  see  that  there  is  anything  in  Hadley 
v.  Baxendale  which  at  all  conflicts  with  this. 

Blackburn,  J. — I  am  entirely  of  the  same  opinion.  I  think  it 
all  comes  round  to  this  :  The  measure  of  damages  when  a  party  has 
not  fulfilled  his  contract  is  what  might  be  reasonably  expected,  in 
the  ordinary  course  of  things,  to  flow  from  the  non-fulfillment  of  the 
contract — not  more  than  that,  but  what  might  be  reasonably  expected 
to  flow  from  the  non-fulfilment  of  the  contract  in  the  ordinary  state 
of  things,  and  to  be  the  natural  consequences  of  it.  The  reason  why 
the  damages  are  confined  to  that  is,  I  think,  pretty  obvious,  viz.,  that 
if  the  damage  were  exceptional  and  unnatural  damage,  to  be  made 
liable  for  that  would  be  hard  upon  the  seller,  because  if  he  had 
known  what  the  consequence  would  be,  he  would  probably  have 
stipulated  for  more  time,  or,  at  all  events,  have  used  greater  exer- 
tions, if  he  knew  that  that  extreme  mischief  would  follow  from  the 
non-fulfillment  of  his  contract.  On  the  other  hand,  if  the  party  has 
knowledge  of  circumstances  which  would  make  the  damages  more 
extensive  than  they  would  be  in  an  ordinary  case,  he  would  be  liable 
to  the  special  consequences,  because  he  has  knowledge  of  the  cir- 
cumstances which  would  make  the  natural  consequences  greater  than 


302  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

in  the  other  case.  But  Mr.  Coleridge's  argument  would  come  to 
this,  that  the  damages  could  never  be  anything  but  what  both  par- 
ties contemplated ;  and  where  the  buyer  intended  to  apply  the  thing 
to  a  purpose  which  would  make  the  damages  greater,  and  did  not 
intend  to  apply  it  to  the  purpose  which  the  seller  supposed  he  in- 
tended to  apply  it,  the  consequence  would  be  to  set  the  defendant 
free  altogether.  That  would  not  be  just,  and  I  do  not  think  that 
was  at  all  meant  to  be  expressed  in  Hadley  v.  Baxendale.  Here  the 
arbitrator  has  found  that  what  the  defendants  supposed  when  they 
were  agreeing  to  furnish  the  derrick  was,  that  it  was  to  be  employed 
in  the  most  obvious  manner  to  earn  money,  which  the  arbitrator  as- 
sesses at  4:201.  during  the  six  months'  delay  ;  and,  as  I  believe  the* 
natural  consequence  of  not  delivering  the  derrick  was  that  that  sum 
was  lost,  I  think  the  plaintiffs  should  recover  to  that  extent. 

Mellor,  J. — I  am  entirely  of  the  same  opinion.  The  question 
is,  what  is  the  limit  of  damages  which  are  to  be  given  against  the 
defendants  for  the  breach  of  this  contract  ?  They  will  be  the  dam- 
ages naturally  resulting,  and  which  might  reasonably  be  in  contem- 
plation of  the  parties  as  likely  to  flow,  from  the  breach  of  such  con- 
tract. It  is  no't  because  the  parties  are  not  precisely  ad  idem  as  to 
the  use  of  the  article  in  question  that  the  defendants  are  not  pay 
any  damages.  Both  parties  contemplated  a  profitable  use  of  the  der- 
rick ;  and  when  one  finds  that  the  defendants  contemplated  a  partic- 
ular use  of  it,  as  the  obvious  mode  in  which  it  might  be  used,  I  think 
as  against  the  plaintiffs,  they  cannot  complain  that  the  damages  do 
not  extend  beyond  that  which  they  contemplated  as  the  amount 
likely  to  result  from  their  own  breach  of  contract. 

Judgment  for  the  plaintiffs  accordingly. 


contract  of  sale   made  with   reference  to  a  ixesale   intended 
by  Vendee  ;  Profits. 


COURT  OF  APPEALS,  NEW  YORK. 

[1809.]    Messmoee  v.  The  New  York  Shot  &  Lead  Company 

(40  N.  Y.  422). 

The  general  rule  of  damages  on  the  breach  of  a  contract  for  the  manufacture  or  sale  of 
an  article,  is  the  difference  between  the  contract  price  and  its  market  value. 

But  the  rule  is  changed  when  the  seller  knows  that  the  purchaser  has  an  existing  con- 
tract for  a  resale  at  an  advanced  price,  which  his  purchase  is  made  to  fulfill,  because 
the  profit  to  be  derived  from  the  resale  may  justly  be  said  to  have  entered  into  the 
contemplation  of  the  parties  in  making  the  contract. 


MESSMORE  t.  THE  NEW  YORK  SHOT  &  LEAD  COMPANY.  303 

Accordingly,  where  one  contracted  to  furnish,  at  an  agreed  price,  bullets  of  a  certain  cali- 
bre, which  the  seller  knew  were  intended  by  the  purchaser  to  fulfill  a  contract  for  the 
sale,  at  a  higher  price,  of  the  same  kind  and  quantity  of  bullets,  to  the  State  of  Ohio, 
the  seller  was  held  liable  to  pay  as  damages  for  breach  of  his  contract,  the  difference 
between  the  price  he  was  to  receive,  and  that  the  vendee  would  have  had  on  the  resale. 

Notwithstanding  the  original  contract  was  in  writing,  it  was  proper  to  show  aliunde  that 
the  seller  was  apprised  of  the  resale  intended  by  the  vendee. 

Held  also,  by  a  majority  of  the  court  (Daniels,  J.,  dissenting),  that  where  the  article  fur- 
nished by  the  seller  w^s  not  such  as  the  purchaser  was  entitled  to,  and  the  seller  was 
notified  to  that  effect,  the  purchaser  had  the  right  to  sell  it  at  the  place  of  de- 
livery for  the  best  price  he  could  obtain,  without  giving  notice  to  the  defendant  of 
the  time  and  place  of  such  sale.  On  such  sale  he  could  recover  from  the  vendor  the 
difference  between  that  price  and  the  sum  stipulated  by  the  contract  of  resale. 

Per  Daniels,  J. — Where  the  goods  delivered  were  known  to  the  seller  to  be  intended  for 
transportation  to  a  distant  market,  and  did  not  conform  to  the  contract  of  sale,  but 
were  of  less  value  at  the  place  of  destination  than  those  contracted  for,  the  buyer 
was  entitled  to  recover  the  difference  between  their  value  at  that  market  and  what 
would  have  been  the  value  there  of  the  goods  stipulated  for,  to  the  extent  necessary 
to  indemnify  him  for  the  profit  which,  through  the  seller's  default,  he  failed  to 
receive. 

This  was  an  appeal  to  the  Court  of  Appeals,  of  New  York,  from 
a  judgment  of  the  Court  of  Common  Pleas,  for  the  city  and  county 
of  New  York. 

The  following  contract  was  made  between  the  parties  : 

New  Yoke,  June  8,  1861. 
Mr.  Daniel  Messmore,  No.  23  William  Street : 

Dear  Sir — We  will  fill  your  order  for  100,000  lbs.  of  Minie  bul- 
lets— 58  calibre,  U.  S.  Rifle  Musket — and  deliver  them  on  board 
such  lines  as  you  may  direct,  as  rapidly  as  possible,  on  the  following 
terms : 

The  price  to  be  7c.  per  lb.  If  packed  in  kegs  the  charge  to  be 
12c.  per  100  lbs.,  and  cartage  50c.  per  ton.  The  terms  of  payment 
to  be  prompt  cash  for  each  lot  as  delivered,  to  be  paid  on  presenta- 
tion of  invoice  and  bill  of  lading. 

Respectfully  your?. 

n/y.  shot  AND  LEAD  CO., 

By  J.  E.  Graxxiss. 
This  contract  was  made  by  the  plaintiff  for  the  purpose  of  ful- 
filling another  contract  between  him  and  the  State  of  Ohio,  for  the 
delivery  at  Columbus,  in  that  State,  of  bullets  of  the  same  number, 
kind  and  calibre.  Against  the  objection  taken  by  the  defendant, 
that  the  evidence  tended  to  vary  the  foregoing  written  contract,  the 
plaintiff  was  permitted  to  prove  that  he  had  shown  his  contract  with 
the  State  of  Ohio,  to  the  defendant's  agent,  who  had  insisted  on  see- 
ing it  before  making  the  one  in  suit. 


30-i  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

Two  lots  of  10,000  lbs.  each  were  shipped  by  the  defendants,  one 
of  which  was  paid  for  by  the  plaintiff,  after  which  he  was  informed 
that  the  bullets  were  rejected  by  the  quartermaster  general  of  Ohio, 
as  not  conforming  to  the  plaintiff's  contract  with  the  State.  This, 
on  examination,  proved  to  be  the  case,  as  the  bullets  were  of  various 
calibres  and  useless  for  the  purpose  intended.  The  plaintiff,  after 
offering  to  return  the  bullets  to  the  defendant,  who  refused  to  accept 
them,  sold  them  at  Columbus  for  four  and  a  half  cents  a  pound, 
which  was  the  best  23i*ice  he  could  get,  and  all  they  were  worth  at 
that  market.  Such  bullets  as  had  been  ordered  were  worth  there, 
as  the  defendants  were  permitted  to  prove  against  the  plaintiff's  objec- 
tion, nine  cents  a  pound. 

The  plaintiff  submitted  to  the  jury  two  calculations  of  his  dam- 
ages, one  showing  the  net  difference  between  the  price  of  the  bullets 
under  the  two  contracts,  adding  what  he  had  paid  for  the  first  lot, 
with  the  charges  for  packing,  cartage  and  freight  on  those  sent, 
and  deducting  what  he  had  received  from  the  sale  at  Columbus ;  and 
the  other  the  difference  between  the  price  according  to  his  con- 
tract with  the  defendants,  and  the  market  price  in  Ohio,  making  the 
same  additions  and  deduction,  and  also  including  what  would  have 
been  the  further  expense  of  sending  the  other  80,000  bullets.  By 
the  first-mentioned  calculation,  the  amount  due  was  $1,128  50 ;  by 
the  other,  $1,764  00.  The  jury  found  for  the  plaintiff  for  the  first- 
mentioned  amount. 

On  the  appeal  to  the  Court  of  Appeals,  the  following  opinions 
were  delivered : 

Mason,  J. — It  is  not  necessary  to  decide,  in  this  case,  whether  the 
plaintiff  was  entitled,  upon  the  evidence,  to  recover  the  value  of 
these  bullets  upon  the  market  price  in  Ohio,  as  shown  by  the  evi- 
dence, or  whether  the  court  erred  in  admitting  the  evidence  to  show 
the  value  of  such  bullets  there,  as  the  verdict  of  the  jury  shows  that 
no  such  rule  of  damages  was  adopted  by  them  in  giving  this  ver- 
dict. They  simply  allowed  to  the  plaintiff  the  profits  which  he 
would  have  made  had  the  contract  been  fulfilled,  to  wit :  Three- 
fourths  of  a  cent  per  pound,  and  the  express  charges  and  storage  on 
what  was  sent.  The  plaintiff  submitted  two  statements  :  One  made 
upon  the  basis  that  he  was  entitled  to  recover  just  the  difference  be- 
tween the  purchase  price  and  the  price  at  which  he  had  contracted 
for  their  resale  to  the  State  of  Ohio,  with  the  express  charges  which 
he  had  paid  on  those  sent,  which  were  refused  because  of  their  in- 
ferior quality  ;  the  other  was  the  difference  between  the  seven  cents 
per  pound  and  the  nine  cents,  which  the  evidence  showed  tliem 


MESSMORE  v.  THE  NEW  YORK  SHOT  &   LEAD  COMPANY.    305 

worth  in  Ohio.  These  statements  were  all  carried  out  in  items  and 
figures,  the  first  statement  making  the  plaintiff's  claim  for  damages 
$1,128  50,  and  the  second  $1,949  22,*  and  the  verdict  of  the  jury  was 
$1,128  50 ;  showing  conclusively  that  they  adopted  the  first  state- 
ment without  computation,  and  gave  the  plaintiff,  as  damages,  no 
more  than  the  profits  he  would  have  made  had  the  contract  been  ful- 
filled, and  what  he  paid  out  for  express  charges  on  those  sent  which 
were  refused.  The  defendants  claim  and  insist,  however,  that  this 
collateral  contract  of  the  plaintiff  with  the  State  of  Ohio  was  im- 
properly allowed  in  evidence,  and  could  not  be  allowed  as  the  basis 
of  damages  between  these  parties ;  that  in  short  the  plaintiff  can 
only  recover  the  difference  between  the  contract  price  and  the  mar- 
ket value  in  the  city  of  New  York  where  the  contract  of  sale  was 
made,  and  where  the  property  was  to  be  delivered  under  the  contract. 

The  general  rule  of  damages,  ordinarily,  is  the  difference  between 
the  contract  price  and  the  market  value  of  the  article  at  the  time 
and  place  of  delivery  fixed  by  the  contract.  This  is  not  the  invariable 
rule  in  all  cases.  The  general  rule  is,  that  the  party  injured  by  a 
breach  of  a  contract,  is  entitled  to  recover  all  his  damages,  including 
gains  prevented  as  well  as  losses  sustained,  provided  they  are  certain, 
and  such  as  might  naturally  be  expected  to  follow  the  breach.  In 
commodities  commonly  purchasable  in  the  market,  it  is  safe  to  say 
that  the  purchaser  is  made  whole,  when  he  is  allowed  to  recover  the 
difference  between  the  contract  price  and  the  value  of  the  article  in 
the  market  at  the  time  and  place  of  delivery ;  because  he  can  supply 
himself  with  this  article  by  going  into  the  market  and  making  his 
purchase  at  such  price,  and  these  are  all  the  damages  he  is  ordinarily 
entitled  to  recover,  for  nothing  beyond  this  is  within  the  contempla- 
tion of  the  parties  when  they  entered  into  the  contract. 

This  rule,  however,  is  changed  when  the  vendor  knows  that  the 
purchaser  has  an  existing  contract  for  a  resale  at  an  advanced  price, 
and  that  the  purchase  is  made  to  fulfill  such  contract,  and  the  vendor 
agrees  to  supply  the  article  to  enable  him  to  fulfill  the  same,  be- 
cause those  profits  which  would  accrue  to  the  purchaser  upon  fulfill- 
ing the  contract  of  resale,  may  justly  be  said  to  have  entered  into 
the  contemplation  of  the  parties  in  making  the  contract  (Griffin  v. 
Colver,  16  N.  Y.  E.  493).  This  rule  is  based  upon  reason  and  good 
sense,  and  is  in  strict  accordance  with  the  plainest  principles  of  jus- 
tice. It  affirms  nothing  more  than  that  where  a  party  sustains  a  loss 
by  reason  of  a  breach  of  a  contract,  he  shall,  so  far  as  money  can  do 

*This  includes  interest  from  August,  1861. 
20 


306  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

it,  be  placed  in  the  same  situation  with  respect  to  damages,  as  if  the 
contract  had  been  performed. 

It  was  clearly  competent  for  the  plaintiff  to  show  that  the  de- 
fendants were  informed  of  the  object  of  the  plaintiff  in  making  this 
contract  of  purchase  of  them,  and  that  it  was  to  fulfill  an  existing 
contract  of  his  own  with  the  State  of  Ohio  at  a  price  of  three- 
fourths  of  one  cent  per  pound,  above  the  price  he  was  to  pay  them, 
and  that  they  were  to  manufacture  these  bullets  to  enable  him  to 
fulfill  such  contract,  because  it  showed  that  these  profits  to  this 
plaintiff  were  in  the  contemplation  of  the  parties  in  entering  into 
this  contract,  and  as  the  evidence  showed  such  to  be  the  fact,  these 
profits  that  would  have  accrued  to  the  plaintiff  had  the  contract  been 
performed  by  the  defendants  are  in  no  sense  speculative  or  uncer- 
tain profits.  The  result  of  a  non-performance  is  a  practical  and  cer- 
tain loss  to  the  plaintiff  to  that  extent,  unless  the  plaintiff  could  have 
supplied  himself  by  going  into  the  market,  and  making  a  purchase 
to  fulfill  his  contract,  which,  at  that  particular  time,  it  is  pretty  evi- 
dent, he  could  not  do,  as  lead  went  up,  after  the  making  of  this  con- 
tract, rapidly,  and  bullets  were  sold  in  Ohio  for  nine  cents  in  a  month 
after  the  making  of  this  contract ;  and  the  plaintiff  testified  that  he 
was  offered  nine  cents  for  a  good  Minie  bullet  by  two  or  three  differ- 
ent persons,  and  that  Woods  offered  him  that  for  100,000  lbs.,  if  de- 
livered within  ten  days.  This  was  in  July  and  August,  only  a 
month  or  two  after  this  contract  was  entered  into,  and  the  demand 
became  so  great  that  lead  went  up  five  to  six  cents  a  pound.  The 
evidence  fails  to  show  that  these  bullets  were  sacrificed  in  the  sale  of 
them  by  the  plaintiff;  on  the  contrary,  the  evidence  is  they  were 
sold  for  all  they  were  worth  (see  case,  fols.  82  and  46).  This  case 
does  not  fall  within  the  principle  of  Reed  v.  Randall  (29  N.  Y. 
358),  as  the  plaintiff  never  had  an  opportunity  to  examine  the  bullets, 
and  no  inspection  was  ever  made  of  them  by  the  plaintiff,  or  any  one 
in  his  behalf.  They  were  put  up  in  bags  and  kegs  by  the  defendants 
and  actually  shipped  by  them  in  their  own  name,  and  the  contract 
itself  required  them  to  deliver  them  to  such  lines  of  transportation 
as  the  plaintiff  should  direct,  and  evidently  the  plaintiff  had  no  op- 
portunity to  examine  them,  and  therefore  cannot  be  held  to  have 
made  such  an  acceptance  as  to  deprive  him  of  his  action. 

The  plaintiff  had  the  right  to  sell  these  bullets  at  the  best  price 
he  could  obtain  for  them,  after  his  offer  to  return  them,  and  the  de- 
fendants' refusal  to  receive  them  ;  and  the  law  did  not  require  him 
to  give  notice  to  the  defendants  of  the  time  and  place  of  sale  (Pollen 
&  Colgate  v.  Le  Roy  &  Smith,  30  N.  Y.  549).     This  is  not  very 


MESSMORE   v.   THE  NEW  YORK  SHOT  &  LEAD  COMPANY.  307 

material,  however,  as  the  evidence  is  they  were  sold  for  all  they  were 
worth. 

There  was  no  error  committed  in  allowing  the  plaintiff  to  recover 
what  he  paid  out  for  transportation,  on  these  bnllets.  By  his  con- 
tract with  the  State  of  Ohio,  the  State  were  to  pay  these  expenses 
of  transportation,  and  as  they  refused  to  receive  them  because  of 
their  defects,  the  plaintiff  has  sustained  this  loss,  and  the  defendants 
cannot  complain  of  this,  when  they  accepted  his  order  and  actually 
shipped  them  by  express  themselves. 

The  judgment  should  be  affirmed. 

Daniels,  J. — By  the  terms  of  the  contract  made  by  the  defend- 
ant, it  agreed  to  fill  an  order,  previously  received  by  the  plaintiff  for 
the  bullets,  from  the  authorities  of  the  State  of  Ohio.  "When  the 
bullets  were  delivered,  it  was  provided  by  the  defendant's  contract, 
that  it  should  be  done  at  the  city  of  New  York,  on  board  such  lines 
as  the  plaintiff  should  direct  to  receive  them.  And  the  order  refer- 
red to  in  the  contract,  directed  them  to  be  sent  to  Columbus,  in  the 
State  of  Ohio,  by  express.  The  right  given  to  the  plaintiff  of  direct- 
ing what  lines  should  receive  the  bullets  from  the  defendant,-  as  well 
as  the  direction  explicitly  given  by  the  order,  the  defendant,  by  its 
contract,  undertook  to  fill,  conferred  upon  the  plaintiff  the  authority 
to  require  that  they  should  be  carried  and  transported  in  that  man- 
ner from  New  York  to  Columbus.  And  the  delivery  of  the  bullets 
without  objection,  to  the  express  company,  by  the  defendant,  indi- 
cated its  conviction  to  be  that  the  plaintiff  had  properly  exercised  the 
authority  which  the  agreement  had  for  that  purpose,  by  clear  impli- 
cation, conferred  upon  him. 

The  agreement  did  not  require  that  the  bullets  should  be  in- 
spected, examined  or  accepted  by  the  plaintiff  at  the  city  of  New 
York.  It  must  therefore  have  been  intended  that  the  plaintiff  should 
be  secured  the  opportunity  of  doing  that  after  their  arrival  at  Co- 
lumbus. That  was  a  right  the  plaintiff,  as  the  vendee  of  the  prop- 
erty, had,  by  law,  and  the  only  qualification  attending  it  was,  that  it 
should  be  made  available  within  a  reasonable  time  after  the  oppor- 
tunity for  doing  it  was  afforded  to  him.  As  it  was  not  contemplated 
by  anything  contained  in  the  agreement  that  this  should  be  done  be- 
fore the  bullets  were  delivered  to  the  carrier,  and  as  no  opportunity 
could  be  presented  for  doing  it  afterwards,  until  they  arrived  and 
were  delivered  at  the  point  for  which  they  were  destined,  it  follows 
that  the  plaintiff  had  the  right  to  reject  them  upon  their  arrival  at 
Columbus,  when  it  was  ascertained  that  they  failed  to  conform  to 
the  terms  of  the  defendant's  agreement  (Reed  v.  Randall,  29  N.  Y. 


308       CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

358).  This  right  was  not  extinguished  by  a  mere  formal  delivery  of 
the  bullets.  It  continued  until  the  plaintiff  could  examine  and  in- 
spect them  for  the  purpose  of  determining  whether  they  corre- 
sponded to  the  bullets  he  had  a  right  to  insist  upon  having,  under 
the  terms  of  the  defendant's  agreement.  And  for  that  reason,  the 
expenses  of  their  transportation  to  Columbus  was  one  of  the  risks 
assumed  by  the  defendant,  for  the  loss  of  such  expenses  depended 
entirely  upon  the  circumstances  of  the  performance  of  the  contract 
by  the  defendant.  It  was  necessarily  incurred  before  it  could  be 
properly  ascertained  whether  the  defendant  had,  or  had  not,  per- 
formed the  obligation  it  had  entered  into.  And  when  it  was  discov- 
ered that  it  had  failed  to  do  that,  the  loss  of  those  expenses  had  oc- 
curred. This  loss,  therefore,  necessarily  arose  out  of  the  defendant's 
failure  to  perform  its  contract,  and  for  that  reason  it  was  properly 
chargeable  to  it  as  a  direct  and  legitimate  item  of  damages. 

As  these  bullets  were  not  designed  for  the  New  York  market, 
but  for  transportation  to  and  sale  at  Columbus,  their  value  at  that 
place  constituted  a  proper  subject  for  consideration  upon  the  question 
of  damages.  If  the  plaintiff  had  not,  by  the  terms  of  the  order  to 
him,  been  entitled  to  much  less  than  that,  the  difference  between  the 
contract  price  and  the  market  value  at  Columbus  would  have  formed 
the  measure  of  compensation  due  to  the  plaintiff  on  account  of  the 
defendant's  failure  to  perform  the  contract  (Bridge  v.  Wain,  1 
Starkie,  410;  Hargous  v.  Ablon,  5  Hill,  472,  474).  But  by  the 
terms  of  the  order  received  by  the  plaintiff  from  the  State  authori- 
ties, he  was  entitled,  by  way  of  profit  upon  the  transaction,  to  much 
less  than  that ;  and  that  profit  added  to  the  expenses  necessarily  paid 
by  the  plaintiff,  was  the  loss  sustained  by  him  in  consequence  of  the 
defendant's  failure  to  perform  its  agreement.  As  he  was  entitled  to 
recover  no  more  than  an  indemnity  from  the  defendant,  this,  there- 
fore, formed  the  measure  of  the  damages  which  was  due  to  him  in 
the  action  ;  and  that  he  recovered,  by  the  verdict  of  the  jury,  after 
deducting  from  the  amount  the  sum  he  had  received  from  the  sale 
which  was  made  of  the  bullets  when  it  was  discovered  that  they 
were  not  such  as  were  required  by  the  terms  of  the  defendant's 
contract. 

When  the  plaintiff  found  that  the  bullets  were  not  such  as  he  was 
entitled  to  receive,  and  notice  was  given  of  that  fact  and  of  their  re- 
jection on  that  account  to  the  defendant,  he  held  them  as  the  bailee 
of  the  latter,  subject  to  its  order  and  direction,  and  as  such  he  could 
not  lawfully  conclude  the  defendant  by  a  sale  of  them ;  but  as  he 
sold  them  for  what  was  proven  to  be  their  full  value,  and  the  de- 


BORRIES  v.  HUTCHINSON.  309 

fendant  availed  itself  of  the  result  of  the  sale  by  having  the  balance 
over  the  expenses  realized  from  it  deducted  from  the  amount  the 
plaintiff  would  otherwise  have  recovered  by  the  verdict,  it  has  no 
reason  for  complaining  that  the  sale  itself  was  wrongful  or  made 
without  its  authority.  It  has  had  the  full  value  of  its  property,  as 
much  so  as  if  the  property  had  been  returned  in  specie  to  it,  or  the 
money  itself  had  be  received  for  it. 

The  verdict  and  the  judgment  upon  it  were  clearly  right,  and  the 
judgment,  therefore,  should  be  affirmed. 

Hunt,  Ch.  J.,  Woodruff,  Geover,  James  and  Lott  were  for 
affirmance  on  the  ground  stated  in  the  opinion  of  Mason,  J. 

Judgment  affirmed. 


Contract  of  Sale  ;   Loss   of   Peofit   on  Resale  ;  Consequential 
Damages  ;  Several  Deliveries. 


COURT   OF   COMMON   PLEAS. 

[1865.]     Boreies  v.  Hutchinson  (18  C  B.  "N".  S.  445  ;  s.  c.  34 
L.  J.  N.  S.  C.  P.  169  ;  11  Jar.  N.  S.  267  ;  13  W.  E. 

386 ;  11  L.  T.  X.  S.  77). 

The  defendant  contracted  to  sell  to  the  plaintiffs  75  tons  of  caustic  soda — a  commodity 
not  ordinarily  procurable  in  the  market — at  a  given  price,  to  be  delivered  on  the 
rails  at  Liverpool  for  Hull,  25  tons  in  June,  25  tons  in  July,  and  25  tons  in  August ; 
but  he  failed  to  deliver  any  until  the  16th  of  September,  between  which  day  and  the 
26th  of  October  be  delivered  26  tons  in  all. 

At  the  time  of  entering-  into  the  contract,  the  defendant  was  aware  that  the  plaintiffs  were 
buying  the  soda  for  a  foreign  correspondent,  but  did  not  know  until  the  end  of 
August  that  it  was  destined  for  St.  Petersburg. 

The  plaintiffs  had  in  fact  contracted  to  sell  the  soda  to  A.,  a  merchant  at  St.  Petersburg 
at  an  advanced  price ;  and  A.  had  contracted  to  sell  it  to  B.,  a  soap  manufacturer  at 
that  place,  for  a  still  further  advance. 

In  consequence  of  the  late  delivery  of  the  26  tons,  the  plaintiffs  were  compelled  to  pay  a 
higher  rate  of  freight  and  insurance.  This  amoimted  to  40/.  lis.  For  their  failure 
to  deliver  the  remainder  to  A.,  they  were  called  upon  to  pay  and  actually  paid  159/., 
which  A.  claimed  as  the  compensation  he  had  been  obliged  to  pay  to  B.  for  the  fail- 
ure to  perform  his  sub-contract  with  him. 

In  an  action  by  the  plaintiffs  to  recover  from  the  defendant  damages  for  the  breach  of  his 
contract  with  them,  it  was  conceded  that  they  were  entitled  to  recover  the  differ- 
ence between  the  price  (on  the  49  tons  undelivered)  at  which  he  had  sold  the  caustic 
soda  to  them,  and  the  price  at  which  they  had  contracted  to  sell  it  to  A. — in  other 
words,  the  loss  of  profit  on  the  resale  :  and, 


310  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

Held,  that  they  were  also  entitled  to  recover  the  401.  17s.,  the  excess  of  freight  and  insur- 
ance, which  was  the  necessary  result  of  the  defendant's  breach  of  contract;  but  that 
the  defendant  was  not  chargeable  with  the  159£  which  the  plaintiffs  had  paid  to  A. 
to  compensate  B.  for  the  loss  of  his  bargain — this  being  too  remote  a  damage. 

This  was  an  action  for  the  breach  of  a  contract  for  the  sale  of  a 
quantity  of  caustic  soda. 

The  declaration  stated  that  the  plaintiffs  bargained  with  the  de- 
fendant and  agreed  to  buy  of  him  a  large  quantity,  to  wit,  75  tons, 
of  Ids  best  caustic  soda,  strength  guaranteed  not  to  be  less  than  70 
per  cent.,  in  5  cwt.  iron  casks  or  3  cwt.  wooden  casks,  at  the  plaint- 
iffs' option,  at  the  price  of  161.  5s.  per  ton  free  on  rails  at  Widness 
dock,  less  2  %  per  cent,  discount  and  1  per  cent,  commission :  pay- 
ment, cash  fourteen  days  after  delivery  :  shipment  to  be,  25  tons  in 
June,  25  tons  in  July,  and  25  tons  in  August :  averment,  that  all 
conditions  were  fulfilled,  and  all  things  happened,  and  all  times 
elapsed  necessary  to  entitle  the  plaintiffs  to  the  delivery  of  the  said 
caustic  soda  :  breach,  that  the  defendant  did  not  deliver  the  same  to 
the  plaintiffs ;  and  the  plaintiffs,  by  reason  of  the  premises,  had  been 
hindered  and  prevented  from  performing  a  certain  other  contract 
made  by  them  with  one  Heitmann,  of  St.  Petersburg,  for  the  sale 
to  him  of  the  said  caustic  soda  at  greatly  increased  prices,  which  last- 
mentioned  contract  was  made  on  the  faith  of  the  agreement  by  the 
defendant ;  and  by  reason  of  the  premises  the  plaintiffs  had  been  ob- 
liged to  pay  a  much  larger  sum  for  freight  and  insurance  than  they 
otherwise  would  have  done  if  the  defendant  had  performed  his  said 
contract,  and  had  incurred  other  losses,  and  were  liable  for  other 
damages,  &c. 

The  defendant  paid  52Z.  5s.  4d.  into  court,  averring  that  that  sum 
was  sufficient  to  satisfy  the  claim  of  the  plaintiffs  ;  which  they  by 
their  replication  traversed  ;  and  thereupon  issue  was  joined. 

The  cause  was  tried  before  Willes,  J.,  at  the  second  sitting  in 
London  in  Michaelmas  Term  last.  The  facts  were  as  follows  :  On 
the  11th  of  May,  1863,  the  defendant,  who  was  an  alkali  manufac- 
turer at  Liverpool,  sold  to  the  plaintiffs,  who  were  merchants  at 
Newcastle-upon-Tyne,  75  tons  of  caustic  soda,  to  be  delivered  free  on 
the  rails  for  Hull,  25  tons  in  June,  25  tons  in  July,  and  25  tons  in 
August,  at  161.  5s.  per  ton.  The  contract  was  made  by  letters,  which 
letters  and  some  subsequent  correspondence  between  the  plaintiffs 
and  the  defendant  showed  that  the  plaintiffs  were,  to  the  knowledge 
of  the  defendant,  buying  the  article  for  shipment  to  "  friends  on  the 
continent."  The  plaintiffs  had  in  fact  made  a  sub-contract  with  one 
Heitmann,  a  merchant  of  St.  Petersburg,  to  supply  him  with  the 


BORRIES  v.  HUTCHINSON.  311 

article  in  question,  to  be  shipped  at  Hull,  at  171.  10s.  per  ton,  and 
had  made  arrangements  for  its  shipment  for  the  Baltic  at  the  times 
above  mentioned. 

ISTo  part  of  the  caustic  soda  was  delivered  by  the  defendant  until 
September,  between  the  16th  and  the  26th  of  which  month  several 
deliveries  took  place,  in  the  whole  amounting  to  26  tons,  which  were 
shij)ped  by  the  plaintiffs  for  St.  Petersburg  in  pursuance  of  their 
contract  with  Heitmann  ;  but  in  consequence  of  the  advanced  season, 
this  was  done  at  an  increased  rate  for  freight  and  insurance,  to  the 
extent  of  4:01.  17s.  (being  351.  15s.  for  freight,  and  51.  2s.  for  insur- 
ance) beyond  what  they  would  have  had  to  pay  if  the  shipments  had 
been  made  before  the  end  of  August. 

It  was  admitted  that  caustic  soda  is  not  an  article  which  is  kept 
in  stock,  so  as  to  be  capable  of  being  at  any  time  bought  in  the 
market  like  most  other  articles  of  commerce,  consequently  there  was 
no  ascertainable  market  price  ;  hence,  the  defendant  paid  into  court 
enough  to  cover  the  difference  between  the  price  the  plaintiffs  had 
contracted  to  pay  him  for  the  caustic  soda  and  the  price  at  which 
they  had  contracted  to  sell  the  article  to  Heitmann. 

The  plaintiffs,  however,  further  claimed  to  be  entitled  to  recover 
as  damages  the  increased  freight  and  insurance  which  they  had  been 
obliged  to  pay  by  reason  of  the  lateness  of  the  shipment.  They  also 
claimed  to  be  entitled  to  a  further  sum  of  1591.  for  the  loss  of  Her- 
mann's profit  upon  the  49  tons  undelivered,  and  a  compensation 
which  Heitmann  had  been  obliged  to  pay  (and  which  they  had  repaid 
him)  for  the  non-performance  of  his  contract  with  one  Heinburger,  a 
soap  and  candle  manufacturer  at  St.  Petersburg,  to  whom  he  had 
contracted  to  sell  the  caustic  soda — of  which  contract  the  defendant 
had  notice  by  the  correspondence,  but  not  at  the  time  he  made  his 
contract  with  the  plaintiffs. 

On  the  part  of  the  defendant  it  was  submitted  that  these  two  last- 
mentioned  items  of  damage  were  too  remote  ;  and  that  the  mention 
of  "  our  friends  on  the  continent,"  in  the  correspondence  which  took 
place  concerning  the  contract,  at  the  utmost  amounted  only  to  an  in- 
timation to  the  defendant  that  the  plaintiffs  were  buying  as  agents 
for  a  foreign  merchant. 

The  learned  judge  was  inclined  to  think  that  the  plaintiffs  were 
entitled  to  recover  in  respect  of  the  extra  cost  for  freight  and  insur- 
ance occasioned  by  the  delay,  but  not  for  the  loss  by  reason  of  the 
sub-contract  entered  into  by  Heitmann  with  Heinburger. 

The  jury  returned  a  verdict  for  the  full  sum  claimed — 199Z.  17s. ; 
and  the  learned  judge  reserved  leave  to  the  defendant  to  move  to  re- 


312  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

duce  tlie  damages,  the  court  to  be  at  liberty  to  draw  such  inferences 
as  the  jury  might  have  done. 

A  rule  nisi  having  been  obtained,  after  argument,  the  following 
opinions  were  delivered. 

Erle,  C.  J. — This  was  an  action  for  the  breach  of  a  contract  to 
deliver  a  quantity  of  caustic  soda.  As  a  general  rule,  a  vendor  who 
fails  to  deliver  goods  according  to  his  contract,  must  pay  as  damages 
to  the  vendee  the  difference  between  the  value  of  the  goods  at  the 
time  of  the  breach  of  contract  as  compared  with  the  contract  price  : 
or,  in  other  words,  if  the  vendee  can  go  into  the  market  and  get  the 
article  contracted  for,  the  vendor  must  reimburse  him  the  difference 
between  that  which  he  has  been  compelled  to  pay  for  it  and  the  price 
at  which  the  vendor  had  contracted  to  deliver  it.  But  where  the 
article  is  not  one  of  constant  demand  and  supply,  so  that  there  is  no 
market  which  can  be  resorted  to  for  the  purpose  of  obtaining  it, 
another  principle  must  be  had  recourse  to  in  order  to  determine  the 
measure  of  damages  which  the  vendee  is  to  recover ;  and  that  prin- 
ciple has  been  adopted  here,  in  accordance  with  the  rule  in  Hadley 
v.  Baxendale  (9  Exch.  341),  where  it  was  held  that,  where  two  par- 
ties have  made  a  contract,  which  one  of  them  has  broken,  the  dam- 
ages which  the  other  party  ought  to  receive  in  respect  of  such  breach 
of  contract  should  be  such  as  may  fairly  and  reasonably  be  consid- 
ered either  arising  naturally,  i.  e.,  according  to  the  usual  course  of 
things,  from  such  breach  of  contract  itself,  or  such  as  may  reason- 
ably be  supposed  to  have  been  in  the  contemplation  of  both  parties 
at  the  time  they  made  the  contract,  as  the  probable  result  of  the 
breach  of  it.  The  vendor  is  to  pay  to  the  vendee  such  damages  as 
he  may  fairly  and  reasonably  be  supposed  to  have  considered  that  he 
would  be  liable  to  pay  in  the  event  of  his  failure  to  perform  his  con- 
tract. Here,  the  vendor  had  notice  that  the  vendee  was  buying  the 
caustic  soda — an  article  not  ordinarily  procurable  in  the  market — for 
the  purpose  of  resale  to  a  sub-vendee  on  the  continent.  He  made 
the  contract,  therefore,  with  knowledge  that  the  buyers  were  buying 
for  the  purpose  of  fulfilling  a  contract  which  they  had  made  with  a 
merchant  abroad.  If  the  plaintiffs  could  have  delivered  the  caustic 
soda  which  the  defendant  failed  to  supply  to  their  vendee  Heitmann, 
their  profit  thereon  would  have  been  521.  5s.  4:d.  That  sum  the  de- 
fendant has  paid  into  court ;  and  we  may  assume  that  the  plaintiffs 
are  entitled  to  recover  as  damages  for  the  defendant's  breach  the  loss 
of  the  profit  which  the  plaintiffs  would  have  derived  from  the  trans- 
action if  the  defendant  had  delivered  the  caustic  soda  pursuant  to> 
his  contract. 


BORRIES  v.  HUTCHINSON.  313 

Then,  the  contract  was  for  the  sale  of  75  tons,  25  tons  of  which 
were  to  be  delivered  in  June,  25  tons  in  July,  and  25  tons  in  August. 
None  was  delivered  until  September ;  and  then  only  26  tons  in  all ; 
The  question  is,  to  what  damages  the  defendant  is  liable  by  reason  of 
that  late  delivery.  Now,  the  purchaser  of  the  caustic  soda  from  the 
plaintiffs  was  a  merchant  residing  in  St.  Petersburg ;  and,  if  the 
plaintiffs  could  have  had  the  article  at  the  times  stipulated  for, 
viz.,  in  the  months  of  June,  July,  and  August,  they  could  have  for- 
warded it  to  St.  Petersburg  at  a  less  charge  for  freight  and  insurance 
than  they  were  compelled  to  pay.  In  consequence  of  the  lateness  of 
the  season,  it  cost  the  plaintiffs  351.  15s.  additional  for  freight,  and 
51.  2.5.  additional  for  insurance,  beyond  what  they  would  have  had  to 
pay  if  the  soda  had  been  forwarded  in  time.  It  was  insisted  by  Mr. 
Brett  that  notice  to  the  defendant  that  the  plaintiffs  were  buying  the 
caustic  soda  for  the  purpose  of  fulfilling  a  contract  with  a  corre- 
spondent "  on  the  continent,"  and  that  the  place  of  shipment  was 
Hull,  was  not  a  notice  that  the  sub-purchaser  was  a  merchant  in 
Russia,  and  that  the  destination  of  the  soda  was  a  port  in  the  Baltic  ; 
and,  therefore,  that  this  loss  by  the  increase  of  freight  and  insurance 
was  not  one  which  the  plaintiffs  could  claim  as  a  matter  in  respect  of 
which  the  defendants  had  had  notice  at  the  time  of  the  contract.  It 
seems  to  me  that  Mr.  Brett  has  succeeded  in  making  good  that 
ground.  I  do  not  think  a  notice  that  the  sub-purchaser  was  a  person 
residing  "  on  the  continent,"  was  notice  that  the  goods  were  for  ship- 
ment to  the  Baltic.  But  the  defendant  has  broken  his  contract,  and 
the  plaintiffs  are  entitled  to  damages  for  that  breach.  TThat  are 
those  damages  \  I  think  they  are  such  as  might  reasonably  be  ex- 
pected to  arise  from  the  breach.  The  goods  were  to  be  sent  to  Hull, 
where,  if  duly  delivered,  they  would  have  been  available  for  the  Bal- 
tic market.  When  they  were  sent,  they  were  not  so  available  for 
the  Baltic  market  as  they  would  have  been  if  they  had  been  sent  to 
Hull  in  accordance  with  the  terms  of  the  contract.  I  agree  that  it 
is  not  competent  to  a  purchaser  so  to  deal  with  goods  delivered  un- 
der such  circumstances  as  to  exaggerate  the  loss  ;  but  if  he  does  all 
that  a  man  of  reasonable  skill  and  care  can  do  to  make  the  damage  as 
small  as  possible,  there  is  no  reason  why  he  should  not  be  recouped 
to  that  extent.  Receiving  the  soda  in  September  and  October.  I 
think  the  plaintiffs  turned  it  to  the  best  account  they  could  by  f<  >r- 
warding  it  to  Heitmann  as  they  did.  I  do  not  see  how  they  could 
have  diminished  the  loss  by  sending  it  elsewhere.  Having  sent  it  to 
St.  Petersburg  at  an  increased  cost  of  4<>/.  17*..  I  think  that  sum 
fairly  represents  the  amount  of  deterioration  of  the  article  by  reason 


314  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

of  the  defendant's  breach  of  contract,  and  that  the  plaintiffs  were  en- 
titled to  charge  the  defendant  for  that  deterioration. 

The  plaintiffs  further  claimed  damages  by  reason  of  their  haying 
been  called  upon  to  reimburse  Heitmann,  their  vendee,  to  the  extent 
of  159/.,  which  Heitmann  had  paid  to  Heinburger,  a  manufacturer  to 
whom  he  had  contracted  to  sell  the  soda,  to  compensate  him  for  the 
breach  of  his  contract  with  him.  It  appears  to  me  that  that  claim  is 
too  remote.  The  defendant  had  notice  at  the  time  of  entering  into 
the  contract  with  the  plaintiffs  that  they  had  contracted  with  one 
purchaser  on  the  continent.  For  the  damages  resulting  from  that,  it 
is  agreed  that  he  is  responsible.  But  he  had  no  notice  of  the  subse- 
quent resale ;  and  it  is  not  to  be  assumed  that  the  parties  contem- 
plated that  he  was  to  be  held  responsible  for  the  failure  of  any  num- 
ber of  subsales.  These  could  not  in  any  sense  be  considered  as  the 
direct,  natural,  or  necessary  consequence  of  a  breach  of  the  contract 
he  was  entering  into. 

Willes,  J. — I  am  of  the  same  opinion.  As  to  the  damages 
claimed  in  respect  of  the  loss  on  the  contract  between  Heitmann  and 
Heinburs;er,  it  is  consistent  with  all  that  was  or  could  have  been 
known  to  the  defendant  at  the  time  he  made  his  bargain  with  the 
plaintiffs,  that  such  a  contract  might  or  might  not  have  been  entered 
into.  Even  supposing  the  defendant  knew  that  Heitmann  was  the 
purchaser  from  the  plaintiffs,  and  that  it  was  Heitmann's  intention 
to  sell  the  soda  again,  I  see  no  principle  upon  which  he  could  be 
made  liable  in  respect  of  that.  This  is  a  very  different  case  from 
Eandall  v.  Eaper  (E.  B.  &  E.  84 ;  E.  C.  L.  E.  vol.  96),  where  the  de- 
fendant sold  the  plaintiffs  seed  barley  with  a  warranty  that  it  was 
barley  of  a  particular  description.  There  the  seed  was  subject  to  an 
inherent  or  latent  defect,  by  reason  of  which  it  produced  an  inferior 
and  insufficient  crop  ;  and,  whether  the  damages  accrued  to  the  first 
purchaser  or  to  a  sub-purchaser  from  him,  was  a  matter  of  compara- 
tive indifference ;  they  were  equally  damages  naturally  resulting 
from  his  breach  of  contract.  But  here  the  purchasers  entered  into  a 
contract  to  sell  to  Heitmann,  trusting  to  the  performance  of  his  con- 
tract by  the  defendant,  to  enable  them  to  perform  theirs.  The  de- 
fendant had  notice  of  this  contract ;  and  I  see  no  injustice  in  hold- 
ing him  to  be  liable  to  that  extent.  Heitmann  chose  to  take  upon 
himself  a  similar  risk,  and  to  contract  for  the  sale  of  the  soda  to 
Heinbursrer.  Even  if  the  defendant  had  notice  of  this  second  con- 
tract  at  the  time  he  sold  to  Heitmann,  I  think  the  damages  arising 
from  the  non-delivery  by  Heitmann  to  Heinburger  were  too  remote ; 
he  entered  into  no  bargain  to  be  answerable  for  such  consequences. 


BORRIES  v.  HUTCHINSON.  315 

As  to  the  additional  cost  for  freight  and  insurance  incurred  in  send- 
ing the  26  tons  to  Russia,  by  reason  of  the  lateness  of  the  period  at 
which  they  were  forwarded  to  Hull,  it  seems  to  me  that  that  was 
properly  recoverable  as  damages  which  were  the  direct  and  natural 
consequence  of  the  defendant's  failure  to  perform  his  contract,  and 
upon  the  simple  ground  stated  by  my  lord.  It  is  not  suggested  that 
the  plaintiffs  could  have  done  other  than  they  did  to  make  the  soda 
more  valuable.  "What  they  did  seems  to  have  been  the  only  reason- 
able thing  they  could  do  :  and  it  showed  in  the  result  what  the  real 
worth  of  the  soda  was.  In  ordinary  cases,  where  the  article  is  one 
which  can  be  bought  in  the  market,  the  j)roper  measure  of  damages 
for  breach  of  a  contract  to  deliver,  is  the  difference  between  the  con- 
tract price  and  the  market  price  on  the  day  of  the  breach  ;  and  I  can 
quite  understand  a  case  arising  where  goods  are  bought  for  the  pur- 
pose of  fulfilling  a  contract  for  resale  at  a  price  higher  than  the 
market  price,  and  the  original  seller  has  notice  of  that  fact  :  the  dam- 
ages in  such  a  case  might  well  be  influenced  by  that  fact.  That,  how- 
ever, is  not  this  case :  there  was  no  such  notice  ;  and  there  was  no 
market  price  to  which  resort  could  be  had  as  a  test  of  damage.  AVe 
must,  therefore,  ascertain  what  was  the  value  of  the  article  con- 
tracted for  at  the  time  it  ought  to  have  been,  and  at  the  time  when 
it  actually  was  delivered.  Now,  the  value  of  such  an  article  as  this 
depends  upon  the  existence  of  facilities  for  its  transport  to  the  place 
for  which  it  is  destined.  If  the  caustic  soda  had  been  forwarded  to 
Hull  at  the  times  contracted  for,  it  was  capable  of  being  sent  to  St. 
Petersburg.  When  it  was  delivered,  it  was  also  capable  of  being 
sent  to  St.  Petersburg,  but  only  at  a  greater  cost  for  freight  and  in- 
surance than  would  have  been  incurred  if  it  had  been  delivered  in 
due  course  at  Hull.  It  necessarily  follows,  therefore,  that  the  soda 
was  worth  less  when  it  was  delivered,  by  the  difference  between  the 
cost  of  forwarding  it  at  that  time  to  St.  Petersburg  and  what  the 
cost  would  have  been  if  delivered  at  the  times  mentioned  in  the  con- 
tract. The  plaintiffs  are  clearly  entitled  to  recover  that  as  the  direct 
and  natural  consequence  of  the  defendant's  breach  of  contract.  The 
rule  will,  therefore,  be  made  absolute  to  reduce  the  verdict  by  the 
1591.  paid  by  the  plaintiffs  to  Heitmann  for  the  compensation  paid 
by  him  to  Heinburger  for  the  breach  of  his  contract  with  him. 

Keating,  J. — I  also  am  of  opinion  that  the  plaintiffs  were  en- 
titled to  recover  as  damages  for  the  defendant's  breach  of  contract 
the  increased  amount  incurred  for  freight  and  insurance  by  reason  of 
the  delay  in  the  delivery  of  the  caustic  soda  contracted  for,  on  the 
ground  already  stated  by  my  lord  and  my  brother  Willes,  viz.,  that 


316  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

the  lateness  of  the  delivery  occasioned  a  diminution  in  the  market 
value  of  the  article.  That  is  entirely  in  accordance  with  the  prin- 
ciple upon  which  this  court  acted  in  the  case  of  Wilson  v.  The  Lan- 
cashire and  Yorkshire  Kailway  Company  (9  C.  B.  IS".  S.  632 ;  E.  C. 
L.  E.  vol.  99).  That  arose  out  of  a  contract  of  carriage.  The  goods, 
which  consisted  of  cloth,  had  been  purchased  by  the  plaintiff,  a  cap 
manufacturer,  for  the  purpose  of  being  made  up  into  caps  ;  but,  in 
order  to  use  the  cloth  to  the  best  advantage,  it  was  necessary  that  he 
should  have  it  in  time  to  make  it  into  caps  by  a  certain  season.  The 
delay  in  its  transmission  by  the  defendants  caused  the  loss  of  the  sea- 
son. This  court  held  that  the  loss  of  the  season  might,  under  the 
circumstances,  fairly  be  considered  as  a  deterioration  or  diminution 
of  the  market  value  of  the  cloth.  That  is  identical  in  principle  with 
this  case.  I  also  entirely  agree  with  the  rest  of  the  court  that  the 
further  damage  claimed,  viz.,  the  sum  paid  by  Heitmann  to  compen- 
sate ITeinburger  for  the  loss  of  his  sub-contract  with  Heitmann,  was 
too  remote,  and  cannot  be  recovered  by  the  plaintiffs  in  this  action. 
Rule  absolute  accordingly. 

Note. — In  a  recent  case,  where  the  defendant  being  informed  that  certain 
shirtings  to  be  manufactured  according  to  a  sample  were  intended  for  shipment, 
contracted  to  supply  the  plaintiff  with  them  at  an  agreed  price  by  a  fixed  date, 
aud  shortly  before  the  day  notified  the  plaintiff  that  he  could  not  supply  them 
within  the  time,  and  there  were  no  other  goods  of  the  kind  in  the  market,  and 
the  plaintiff,  to  fulfill  his  contract  with  his  sub-vendee,  had  to  buy  elsewhere,  at 
a  higher  price,  goods  which  were  better,  but  were,  in  quality  and  price,  the 
nearest  obtainable  to  those  contracted  for,  he  was  allowed  to  recover  the  differ- 
ence between  the  price  he  had  contracted  to  pay  the  defendant  and  that  he  was 
forced  to  pay  elsewhere.     Hinde  v.  Lidded,  L.  R.  10  Q.  B.  205. 


Measure  of  Damages  for  Non-delivery  of  Goods  under  Con- 
tract of  Sale  ;  Forbearance  of  Buyer  at  Seller's  re- 
quest;   Statute  of  Frauds  (29  Car.  II,  c.  3,  s.  17). 


in  the  exchequer  chamber. 

[1868.]     Ogle  v.  Earl  Vane  (L.  E.  3  Q.  B.  272  ;  affi'g  L.  E.  2 

Q.  B.  275). 

The  defendant  by  bought  and  sold  notes  contracted  to  sell  to  the  plaintiff  500  tons  of 
iron,  delivery  to  extend  to  the  25th  of  July.  Owing  to  an  accident  to  his  furnaces, 
the  defendant  delivered  none  of  the  iron  by  that  date,  nor  up  to  the  February  fob 


OGLE   v.   EARL  VANE.  317 

lowing,  when  the  plaintiff  went  into  the  market;  and  the  price  having  risen  since 
July,  he  sought  to  recover  from  the  defendant,  as  damages  for  his  breach  of  the 
contract  of  sale,  the  difference  between  the  contract  price  and  the  market  price  in 
February.  At  the  trial,  correspondence  was  put  in  which  had  passed  from  August 
to  February  between  the  plaintiff,  the  defendant,  and  the  brokers  who  had  acted 
for  both  parties,  and  were  still  acting  for  the  plaintiff;  from  this  correspondence  it 
appeared  that  the  defendant  repudiated  his  liability,  on  the  ground  that  the  non- 
delivery was  owing  to  inevitable  accident,  but  he  proposed  that  the  plaintiff  should 
take  iron  of  a  different  quality ;  this,  after  consideration,  the  plaintiff  declined ; 
further  negotiation  ensued,  and  on  the  29th  of  December  the  brokers  wrote  to  the 
defendant  that  the  persons  who  had  contracts  for  his  iron  yet  undelivered  were 
pressing  them  extremely,  and  threatened  to  purchase  against  the  defendant ;  adding, 
"  when  our  Mr.  T.  was  with  you,  he  was  informed  that  it  might  take  three  months 
to  put  the  furnaces  in  repair,  and  we  informed  all  our  friends  to  this  effect,  and  they 

have  waited  considerably  over  that  time When   do  you  think  we  may  promise 

deliveries  ?  "  The  defendant  simply  acknowledged  the  letter,  and  said  he  could  not 
say  what  it  was  intended  to  do  with  the  furnaces.  The  jury  having  returned  a 
verdict  for  the  full  amount  claimed  : 
Held,  that  there  was  evidence  from  which  the  jury  might  infer  that  the  plaintiff's  delay 
was  at  the  defendant's  request ;  that,  as  the  evidence  went  to  show,  not  a  new  con- 
tract, but  simply  a  forbearance  by  the  plaintiff  at  the  request  of  the  defendant,  the 
statute  of  frauds  did  not  apply ;  and  that  the  plaintiff  was  entitled  to  a  verdict  for 
the  full  measure  of  damages. 

Appeal  from  the  decision  of  the  Court  of  Queen's  Bench,  dis- 
charging a  rule  to  enter  a  verdict  for  the  defendant  (Law  Rep.  2 
Q.  B.  275). 

The  declaration  was  on  three  contracts,  by  which  the  defendant 
sold  to  the  plaintiff  certain  iron,  to  be  delivered  at  certain  dates 
(setting  out  the  terms  of  three  bought  and  sold  notes),  that  the  iron 
was  not  delivered  at  the  dates  specified,  claiming  damages  for  the 
non-delivery. 

•  Blea,  payment  of  1001.  into  court.     Replication,  damages  ultra. 

Issue  thereon. 

At  the  trial  before  Martin,  B.,  at  the  summer  assizes,  1866,  at 
Manchester,  it  appeared  that  Messrs.  Lockhart,  Tozer  &  Co., 
brokers,  of  Manchester,  made  in  April,  1865,  three  contracts  by 
bought  and  sold  notes,  signed  by  them  as  agents  on  behalf  of  the 
plaintiff  and  defendant  respectively,  by  which  the  j)laintiff,  an 
iron  merchant  at  Manchester,  bought  of  the  defendant,  the  pro- 
prietor of  ironworks  at  Seaham  Harbor,  500  tons  of  iron. 

The  first  note  was  : 

"April  18,  1865. 

Sold  R.  Ogle,  Esq.,  of  Manchester,  for  account  of  Earl  Yane, 
200  tons  of  No.  3  Yane  and  Seaham  pig  iron  at  57s.  per  ton,  less  2£ 
per  cent,  for  cash ;  monthly  payments  ;  delivery  equal  to  Man- 
chester, and  to  extend  over  present  quarter." 


318       CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

The  second,  dated  April  22,  was  similar,  for  200  tons  ;  and  the 
third,  dated  April  25th,  also  similar,  for  100  tons,  but  the  delivery- 
was  "  to  extend  over  three  months." 

In  July,  1865,  the  blast  furnaces  in  the  defendant's  ironworks 
suddenly  gave  way ;  and  in  consequence  the  defendant  was  pre- 
vented manufacturing  iron  ;  and  none  of  the  iron  was  delivered  by 
the  25th  of  July  1865. 

Correspondence  was  put  in  evidence  between  Messrs.  Lockhart, 
Tozer  &  Co.,  Mr.  Shaw  (the  defendant's  manager  at  the  ironworks), 
and  the  plaintiff,  of  which  the  following  letters  are  the  most 
material : 

W.  Tozer,  for  Lockhart,  Tozer  &  Co.,  to  Shaw.     "  Aug.  5,  1865. 

If  Messrs.  Bayley  &  Co.  can  arrange  with  their  customer  to 
take  No.  4  foundry  iron  in  place  of  No.  3  at  Is.  per  ton  less  than 
their  contract,  shall  I  agree  with  them  to  furnish  it,  and  can  I  do 
the  same  with  Ogle  ?  With  the  latter  I  have  as  yet  said  but 
little,  as  he  has  been  out  of  town,  and  only  returned  a  day  or  two 
since." 

Shaw  to  Lockhart,  Tozer  &  Co.  "  August  7,  1865. 

In  reply  to  your  favor  of  the  5th  inst.,  I  beg  to  inform  you 
that,  having  No.  4  foundry  on  hand,  I  am  willing  to  let  Messrs. 
Bayley  and  Ogle  have  it  at  Is.  j>er  ton  less  than  the  price  offered  for 
No.  3,  being  most  desirous  of  accommodating  our  customers  as  far 
as  lies  in  my  power  ;  but  please  remember  that  I  do  not  hold  Earl 
Yane  liable  to  deliver  in  consequence  of  the  accident  to  the  furnaces 
until  they  are  repaired." 

Plaintiff  to  Shaw.  "  August  10,  1865. 

As  I  have  informed  Messrs.  Lockhart,  Tozer  &  Co.,  some  of  my 
constituents  to  whom  I  have  sold  500  tons  No.  3  Y.  &  S.  which  I 
purchased  from  you  are  pressing  for  deliveries.  Mr.  Tozer  informs 
me  that  you  cannot  deliver  any  No,  3  for  some  time  to  come,  and 
that  you  have  only  No.  4  foundry  in  stock.  If  I  could  persuade 
some  of  my  friends  to  take  No.  4  in  lieu  of  3,  what  allowance 
would  you  make  per  ton  ?  I  don't  consider  that  less  than  2s.  would 
be  any  inducement  to  them  to  use  it,  as  most  founders  have  a  de- 
cided objection  to  No.  4  North  of  England  iron.  Awaiting  the 
favor  of  your  reply  in  course." 

Shaw  to  plaintiff.  "  August  11,  1865. 

In  reply  to  your  note  of  the  10th  inst.,  I  can  let  you  have 
foundry  4  at  4:6s.  per  ton,  in  lieu  of  No.  3,  but  if  you  require  No.  3 
I  fear  you  will  have  to  wait  until  the  furnaces  are  repaired  and 
blown  in,  which  will  be  some  time." 


OGLE   v.    EAKL  VANE.  319 

Lockhart,  Tozer  &  Co.  to  Shaw.  "  October  14, 1865. 

Some  time  since  we  sent  an  order  for  some  iron  No.  3  for 
R.  Ogle,  and  at  the  same  time  for  Bellhouse  &  Co.  The  latter  has 
been  received,  but  we  have  heard  nothing  of  the  former.  Mr.  Ogle 
is  most  anxious  for  delivery.  Will  you  please  advise  us  if  it  is  off. 
or  any  portion  thereof." 

Shaw  to  Lockhart,  Tozer  &  Co.  "  October  16,  1865. 

In  reply  to  your  favor  of  the  14th  inst.,  I  have  no  No.  3  in 
stock." 

Lockhart,  Tozer  &  Co.  to  Shaw.  "  October  25,  1865. 

Will  you  transfer  balance  of  Bayley  &  Co.'s  contract,  as  per 
accompanying  note  ?  We  understand  from  Bayley  the  delivery  is 
not  guaranteed  for  two  to  three  months  at  least." 

Shaw  to  Lockhart,  Tozer  &  Co.  "  October  26,  1865. 

In  reply  to  your  note  of  the  25th  inst.,  I  am  unable  to  say  when 
I  can  send  away  iron  from  the  furnaces." 

Lockhart,  Tozer  &  Co.  to  Shaw.  "December  16,  1865. 

We  inclose  two  letters  received  this  week  from  parties  holding 
contracts  for  Yane  &  Seaham  pig  iron  ;  will  you  please  advise  us  on 
the  subject,  as  we  cannot  any  longer  make  them  wait  for  the  iron  V 

Lockhart,  Tozer  &  Co.,  to  Shaw.  "  December  29, 1865. 

We  beg  to  advise  you  that  those  customers  who  have  contracts 
for  your  iron  yet  undelivered  are  now  pressing  us  extremely,  and  are 
threatening  to  purchase  against  you,  charging  you  with  the  differ- 
ence in  amount.  When  our  Mr.  Wm.  Tozer,  from  Manchester, 
waited  upon  you  he  was  informed  that  it  might  take  three  months 
to  put  the  furnaces  into  repair,  and  we  informed  all  our  friends  to 
this  effect,  who  have  waited  considerably  over  that  time.  Now  they 
consider  that  their  contracts  are  entitled  to  attention.  Will  you 
have  the  goodness  to  inform  us  of  the  present  position  of  affairs, 
and  say  when  you  think  we  can  promise  deliveries  %  The  iron  is 
now  very  sound  and  strong,  and  we  think  there  is  a  good  time  for 
the  trade  before  us." 

Shaw  to  Lockhart,  Tozer  &  Co.  "  January  2,  1866. 

Your  favor  of  the  29th  ult.  came  duly  to  hand,  and  in  reply  I 
beg  to  say  that  at  present  I  cannot  say  what  it  is  intended  to  do 
with  the  blast  furnaces." 

Lockhart,  Tozer  &  Co.  to  Shaw.  "  January  18,  1866. 

We  inclose  letter  sent  us  this  morning  by  Mr.  Ogle's  solicitors. 
Will  you  please  advise  us  immediately  what  course  you  wish  us  to 
pursue,  as  we  expect  Hall  &  Pickles  will  pursue  the  same  course  ? " 


320  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

Shaw  to  Lockliart,  Tozer  &  Co.  "  January  19,  1866. 

Your  favor  of  the  18th  inst.,  inclosing  letter  from  Messrs.  Slater 
&  Barling  [plaintiff's  solicitors],  came  duly  to  hand,  and  in  reply 
I  can  only  say  that,  as  the  blast  furnaces  suddenly  gave  way,  and 
were  not  blown  out,  and  no  iron  having  been  made  since,  it  is  a 
casualty  all  buyers  are  subject  to." 

Lockhart,  Tozer  &  Co.  to  Shaw.  "  February  9,  1866. 

We  are  sorry  to  again  trouble  you,  but  we  cannot  help,  as  we 
have  put  off  and  put  off  our  customers  till  now  they  seem  deter- 
mined to  bring  matters  to  a  focus.  We  wrote  you  on  Monday, 
with  copy  of  letter  from  Mr  Ogle's  attorneys.  We  now  inclose 
another  from  that  firm  and  ask  your  attention  to  it.  Mr.  Hall,  of 
Hall  &  Pickles,  has  given  us  notice  that  he  shall  commence  to  suit 
himself  unless  you  make  the  best  efforts  to  get  the  furnaces  in  blast 
or  to  give  him  other  iron.  Bellhouse  &  Bayley  are  also  threaten- 
ing us." 

Shaw  to  Lockhart,  Tozer  &  Co.  "  February  10,  1866. 

Your  favors  of  the  6th  and  9th  instant  came  duly  to  hand.  I 
should  like  to  have  a  copy  of  the  contracts  entered  into  with  the 
different  gentlemen,  as  I  am  aware  in  more  instances  than  one  when 
they  were  not  fulfilled  to  the  time  we  had  no  redress." 

W.  Tozer  for  Lockhart,  Tozer  &  Co.  to  Shaw.      "  Feb.  13, 1866. 

Yours  received  during  my  absence  from  home.  I  inclose  copy 
of  the  sale  note  as  furnished  Ogle  and  others.  I  have  also  re- 
ceived another  communication  this  morning  from  Dalham  Forge 
Company.  They  will  not  wait  any  longer  for  their  iron,  but  say 
they  shall  buy,  and  charge  you  the  difference." 

The  plaintiff  bought  in  the  market  in  February,  1866,  the  mar- 
ket price  having  risen  continuously  from  June,  1865,  to  February, 
1866,  and  he  commenced  his  action  on  the  8th  of  February,  claim- 
ing as  damages  2371.  10s.,  the  difference  between  the  market  price 
in  February,  66s.  6d.  per  ton,  and  the  contract  price,  57s.,  of  500 
tons  of  iron  of  the  quality  contracted  for. 

The  defendant's  counsel  submitted  that  there  was  no  legal  evi- 
dence to  go  to  the  jury  to  show  that  the  plaintiff  was  entitled  to 
more  damages  than  the  difference  between  the  contract  price  and 
the  market  price  at  the  end  of  July,  1865,  when  the  contracts  were 
broken ;  and  it  was  agreed  that  the  100^.  paid  into  court  was  suffi- 
cient to  cover  this. 

The  learned  judge  reserved  the  point ;  and  the  jury  having 
returned  a  verdict  for  1371.  10s.,  the  balance  of  the  sum  claimed, 
leave  was  reserved  to  move  to  enter  it  for  the  defendant,  if   the 


OGLE   v.   EARL  VANE.  321 

court  should  be  of  opinion  that  there  was  no  evidence  to  go  to  the 
jury  of  the  plaintiff  being  entitled  to  more  damages  than  the  sum 
paid  into  court. 

A  rule  having  been  obtained  accordingly,  the  Court  of  Queen's 
Bench,  after  Hilary  Term,  1867,  discharged  it  (Law  Rep.  2  Q.  B. 
275). 

T.  Jones,  Q.  C.  {Crompton  with  him),  for  the  defendant. — Each 
party  contracts  with  reference  to  the  damages  which  will  arise  if 
the  contract  is  broken  ;  and  Shaw,  the  defendant's  agent,  has  never 
undertaken  to  do  more  than  the  law  implies  from  the  contract  to 
deliver  in  July,  viz.,  to  pay  the  difference  between  the  then  market 
price  and  the  contract  price.  Either  there  is  a  contract  void  under 
the  statute  of  frauds,  or  there  is  no  contract  enabling  the  plaintiff 
to  recover  these  larger  damages  ;  otherwise  the  defendant  would  be 
bound,  and  the  plaintiff  be  at  liberty.  Suppose  the  price  had  fallen 
between  July  and  February,  the  plaintiff  would  still  have  been 
entitled  to  the  100Z.,  the  difference  between  the  market  price  in 
July  and  the  contract  price.  This  right  has  never  been  abrogated 
unless  there  was  a  fresh  contract ;  but  if  there  was  no  new  contract, 
and  the  price  of  iron  had  fallen,  the  defendant  could  not  have 
called  upon  the  plaintiff  to  accept  the  iron  after  July.  Again, 
in  none  of  the  letters  has  Shaw  asked  the  plaintiff  to  wait ;  on 
the  contrary,  he  repudiated  all  liability,  but  added,  "  you  had  better 
wait." 

[Kelly,  C.  B. — Was  it  not  for  the  benefit  of  the  defendant  that 
the  plaintiff  waited  ?] 

The  waiting  was  a  mere  speculation  on  the  part  of  the  plaintiff  ; 
he  knew  he  could  always  claim  the  100Z. 

[Montague  Smith,  J. — Suppose  the  defendant  had  actually 
written  in  July,  "  Do  not  go  to  this  market,  but  wait,"  and  the 
plaintiff  had  waited  ?] 

[Keatestg,  J. — The  statement  in  the  letter  of  the  brokers  of  the 
29th  of  December,  1865,  coupled  with  the  answer  of  the  defendant 
of  the  20th  of  January,  1866,  which  contains  no  denial  of  the  state- 
ment, amounts  to  that.] 

These  are  mere  extrinsic  circumstances  which  cannot  be  looked 
at.  In  Brady  v.  Oastler  (3  H.  &  C.  112,  127;  33  L.  J.  Ex.  300, 
305),  in  measuring  the  damages  the  court  refused  to  look  beyond 
the  contract.  Pollock,  C.  B.,  there  says  :  "  When  a  contract  is 
broken,  and  an  action  is  brought  for  damages,  the  heads  of  damage 
are  for  the  court ;  the  amount  of  damage  under  each  head  for  the 
jury  ;  and  I  think  the  heads  of  damage  must  be  determined  by  the 
21 


322  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

contract  itself,  as  finally  agreed  upon  by  the  parties,  and  pnt  into 
writing." 

[Kelly,  C.  B. — What  was  shut  out  in  that  case  was  what  had 
occurred  before  breach.] 

That  makes  no  difference.  An  agreement  in  writing  cannot  be 
varied  by  a  subsequent  parol  agreement ;  the  original  agreement 
remains  in  full  force  (Noble  v.  Ward,  4  II.  &  C.  149  ;  Law  Rep.  1 
Ex.  117).  In  the  court  below  both  judges  base  their  decision  on  the 
ground  that  there  was  no  new  contract ;  but  it  is  a  contradiction  in 
terms  to  say  that  there  is  no  new  contract,  and  yet  that  the  defend- 
ant is  bound  to  pay  damages  to  which  he  was  not  liable  under  the 
original  contract. 

Holker,  for  the  plaintiff,  was  not  heard. 

Kelly,  C.  B.  — We  are  of  opinion  that  the  judgment  of  the  Court 
of  Queen's  Bench  must  be  affirmed.  There  was  a  contract  on  the 
part  of  the  defendant  to  deliver  a  quantity  of  iron,  say,  by  the  25th  of 
July,  and  when  that  time  arrived  none  of  the  iron  had  been  delivered. 
The  defendant's  furnaces  had  met  with  an  accident,  and  he  was 
therefore  unable  to  prepare  the  iron,  and  so  unable  to  perform  his- 
contract ;  and  there  can  be  no  doubt  that  the  plaintiff  was  entitled 
to  commence  an  action  at  once,  and  if  he  had,  the  damages  would 
have  been  measured,  according  to  the  ordinary  rule,  by  the  market 
price  at  which  the  plaintiff  could  have  purchased  the  iron  at  that 
time.  But,  in  consequence  of  a  written  correspondence  and  some 
personal  communication,  we  find  the  plaintiff  forbearing  to  sue, 
and  the  defendant  continuing  to  fail  to  deliver  the  iron.  It  may 
be  that  on  this  correspondence  we  cannot  collect  that  there  was 
any  new  binding  contract  on  the  plaintiff  to  forbear  for  even  an 
indefinite  term,  nor  on  the  defendant  to  deliver  the  iron.  It  is 
also  true  that  the  defendant  in  effect  denies  his  liability  ;  but  that 
did  not  put  the  plaintiff  under  any  obligation  to  reply  that  the 
defendant  was  liable,  and  that  the  plaintiff  held  him  so  liable. 
This  is  what  takes  place  :  the  defendant  (for  what  Shaw  did  may  be 
taken  as  done  by  the  defendant),  who  has  broken  his  contract,  and 
is  then  liable  for  the  breach,  writes  to  the  plaintiff,  and  proposes  to 
deliver  as  a  substitute  for  the  iron  under  the  contract  a  different 
kind  of  iron.  The  plaintiff  proceeds  to  take  this  proposal  into  con- 
sideration, and  ultimately  it  comes  to  nothing,  the  persons  with 
whom  the  plaintiff  had  sub-contracts  refusing,  from  whatever  may 
have  been  the  cause,  to  accept  the  substitution  ;  and  the  proposal  is 
not  accepted  by  the  plaintiff.  But  surely  the  very  proposal  itself 
implies  a  request,  in  all  courtesy,  as  between  men  of  business,  that 


OGLE   v.    EAKL  VANE.  323 

the  plaintiff  will  not  commence  an  action  at  once,  but  delay,  in  order 
to  see  whether  a  compromise  cannot  be  effected  ;  and  surely  whether 
there  was  that  implied  request,  and  consequent  delay  on  the  part  of 
the  plaintiff,  was  matter  for  the  consideration  of  the  jury  in  estimat- 
ing the  damages  the  plaintiff  was  entitled  to.  But  the  case  does  not 
stop  there  ;  there  is  the  letter  of  the  29th  of  December,  pointed  out 
by  my  brother  Keating,  which  shows  that  a  personal  communica- 
tion had  taken  place  between  the  brokers,  or  one  of  them,  and  Shaw, 
the  defendant's  agent,  and  the  broker  had  been  informed  that  it 
would  take  three  months  to  put  the  furnaces  in  repair,  and  that  this 
information  had  been  communicated  to  "  all "  the  brokers'  "  friends," 
of  whom  the  plaintiff  was  one,  and  they  had  waited  for  the  three 
months  and  more.  Surely,  again,  this  communication  from  the 
defendant  inched  a  request  to  the  plaintiff  and  the  other  parties  to 
forbear,  and  the  plaintiff's  waiting  was  an  acquiescence  in  this  re- 
quest. Can  it  reasonably  be  contended  that  that  which  has  been 
called  a  rule  of  law  as  to  the  measure  of  damages,  but  which  is 
rather  a  mere  rule  of  practice,  is  to  prevail  under  all  circumstances  % 
It  would  be  contrary  to  common  sense  and  justice,  when  there  has 
been  a  series  of  proposals  by  the  defendant,  involving  delay  for  his 
own  benefit,  and  acquiescence  on  the  part  of  the  plaintiff,  that 
because  there  may  be  no  binding  contract,  varying  the  terms  of  the 
former  contract,  the  plaintiff  is  to  be  tied  down  to  the  strict  letter 
of  the  rule  as  to  the  measure  of  damages  for  the  non-delivery  of 
goods,  and  not  be  entitled  to  the  damages  consequent  upon  the 
delay.  I  think,  without  entering  into  the  question  whether  there  is 
such  a  positive  rule  of  law  or  not,  we  cannot  do  otherwise,  under  the 
circumstances  of  the  present  case,  than  hold  the  plaintiff  to  be 
entitled  to  the  larger  measure  of  damages. 

Willes,  J. — I  am  of  the  same  opinion.  I  should  like  to  add, 
however,  that  it  appears  to  me  there  was  in  this  case,  in  point  of 
fact,  a  contract  to  purchase  forbearance, — that  is,  there  was,  I  think, 
evidence  for  the  jury,  who  were  the  proper  judges.  There  was 
evidence  on  this  correspondence  that  the  plaintiff  did  assent  to 
forbear,  upon  the  understanding  that  in  the  end  he  was  to  have 
iron  to  the  extent  contracted  for,  in  satisfaction  of  any  claim  that 
he  might  have  on  the  original  contract  ;  and,  as  it  appears  to  me, 
there  is  not  the  absurdity,  as  put  by  Mr.  Jones,  in  saying  there  was 
a  contract  and  no  contract— a  contract  to  affect  the  damages,  and  no 
contract  to  give  a  fresh  cause  of  action  ;  and  for  this  reason — that 
the  contract,  wdiich  did  exist  in  fact,  cannot  be  sued  on  at  laAv.  1  >y 
reason  of  the  old  rule  that  an  accord  not  followed  by  satisfaction 


324  CONTRACTS  FOR  SALE  AND  OTHER  AGREEMENTS. 

was  inoperative  to  give  the  defendant  a  defense,  or  to  give  the 
plaintiff  a  new  remedy.  The  defendant  would  have  no  defense, 
because  there  was  no  satisfaction,  and  the  plaintiff  would  have  no 
new  remedy  if  iron  was  not  delivered,  because  he  could  not  recover 
twice  over.  That  is  the  true  reason  why  the  judges  in  the  court 
below  said  there  was  no  contract ;  there  being  no  contract  that  could 
be  enforced  at  law.  But  I  never  heard  that  that  technical  rule,  as 
to  no  action  lying  on  a  bare  accord,  prevented  an  arrangement,  by 
which,  in  such  a  case  as  this,  buying  in  against  a  contract  is  carried 
over  from  one  market  to  another,  being  so  far  operative  as  to  affect 
the  measure  of  damages  on  the  original  contract ;  and,  for  the 
reasons  stated  by  the  Lord  Chief  Baron,  I  entirely  agree  that  there 
was  evidence  for  the  jury  that  what  passed  between  the  parties 
amounted  to  such  an  arrangement ;  and  the  measure  of  damages 
was,  therefore,  to  be  taken  at  the  time  when  the  purchase  was  made 
by  the  plaintiff,  and  not  according  to  the  general  rule  relied  on  by 
Mr.  Jones,  to  which  this  case  furnishes  an  exception,  so  far  as  that 
the  plaintiff's  right  to  purchase  was  carried  over  from  July  by  the 
defendant  requesting  forbearance  and  the  plaintiff  assenting  to  the 
request.  The  defendant,  in  effect,  bought  forbearance,  and  must 
pay  for  it. 

Channeix,  B.,  and  Keating  and  Montague  Smith,  JJ.,  con- 
curred. 

Judgment  affirmed. 

Note.—  The  foregoing  case  is  followed  in  Hickman  v.  Hayne,  L.  R.  10  C.  P. 
598.  See  Tyers  v.  The  Rosedale  &  Terry  Hill  Iron  Co.  limited,  L.  R.  8  Exch. 
305;  reversed,  L.  R.  10  Exch.  195. 


MERRIMACK  MANUFACTURING   CO.  v.  QUINTARD.  325 


SEVERAL  DELIVERIES. 

Contract  for  Sale  A]std  Delivery  of  Coal  m  Monthly  Portions 
Delay  ;  Loss  from  Increase  of  Freight  ;  Waiter. 


SUPREME    COURT,    MASSACHUSETTS. 

[1871.]    Merrimack  Manufacturing  Co.  v.  Quintard  (107 

Mass.  127). 

In  an  action  to  recover  damages  for  failure  to  deliver  seasonably  goods  sold  by  tbe  de- 
fendants to  the  plaintiffs,  it  appeared  that,  when  the  time  agreed  upon  for  the  deliv- 
ery of  the  goods  was  so  nearly  expired  that  it  was  evident  that  they  could  not  be 
delivered  within  it,  the  defendants  asked  the  plaintiffs  whether  they  would  receive 
the  goods  afterwards,  and  the  plaintiffs  replied  that  they  not  only  would  consent  to, 
but  insisted  upon,  the  delivery.  The  plaintiffs  introduced  evidence  tending  to  show 
that  they  then  said  that  they  would  claim  damages  for  an}'  increase  in  the  cost  of 
the  goods,  produced  by  any  advance  in  freights  or  insurance.  The  defendants  in- 
troduced evidence  tending  to  contradict  this,  and  to  show  that  the  plaintiffs  waived 
any  objection  on  the  ground  of  the  delay.  The  judge  instructed  the  jury  that  re- 
ceiving the  goods  without  objection  on  the  ground  of  delay  would  be  prima  facie  a 
waiver  of  any  such  objection,  but  that  if,  on  consenting  to  receive  the  goods,  the 
plaintiffs  gave  notice  that  they  should  claim  damages  for  increased  expenses  grow- 
ing out  of  the  delay,  then  receiving  the  goods  would  not  be  evidence  of  a  waiver. 
The  jury  found  for  the  plaintiffs.  Held,  that  the  question  of  waiver  was  properly  left 
to  them. 

The  defendants  contracted  to  sell  and  deliver  a  large  quantity  of  coal  to  the  plaintiffs  at 
a  fixed  price,  in  equal  monthly  portions,  during  a  certain  time,  to  be  transported  by 
vessel  and  rail,  at  the  plaintiffs'  expense,  to  their  factory  ;  and  the  plaintiffs  agreed 
to  receive  the  coal  if  the  first  cargo  should  prove  satisfactory.  Held,  in  an  action  to 
recover  for  a  breach  of  the  contract  in  delivering  coal  of  an  inferior  quality,  and  in 
failing  to  deliver  it  until  after  the  contract  time,  that  the  measure  of  damages  for  the 
inferior  quality  was  the  difference  between  the  value  at  the  factory  of  the  coal  called 
for  by  the  contract  and  that  of  the  coal  delivered,  and  the  measure  of  damages  for 
the  failure  to  deliver  in  time  was  not  the  difference  in  the  market  value,  but  the  dif- 
ference between  the  actual  charge  for  freight  and  insurance  and  the  average  rates 
during  the  time  covered  by  the  contract,  especially  in  the  absence  of  evidence  that 
the  average  rates  were  higher  than  the  rate  at  the  end  of  the  contract  period. 

In  an  action  to  recover  damages  for  delay  in  delivering  coal  under  a  contract  to  sell  and 
deliver  coal  during  the  summer,  freight  to  be  paid  by  the  purchaser,  evidence  is  ad- 
missible that  freights  on  coal  were  usually  higher  in  the  autumn  than  in  the  summer, 
to  show  what  was  in  the  contemplation  of  the  parties,  and  that  the  loss  occasioned 
by  increase  in  the  freight  is  properly  to  be  recovered  as  damages. 

Contract  to  recover  damages  for  breacli  of  an  agreement,  dated 
February  29,  1868,  between  tbe  defendants,  as  parties  of  the  first 
part,  and  tbe  plaintiffs,  as  parties  of  tbe  second  part,  tbe  provisions 
of  which  were  as  follows  : 


326  SEVERAL  DELIVERIES. 

"  The  parties  of  the  first  part  agree  to  sell  the  parties  of  the  second 
part  14,000  tons  of  the  Preston  &  Gilberton  Locust  Mountain  coal, 
deliverable  from  April  1  to  September  1,  current  year,  on  board  ves- 
sels at  Philadelphia,  in  equal  monthly  proportions,  as  nearly  as  may 
be,  at  the  price  of  $3  50  per  ton  of  2,240  pounds,  free  on  board,  pay- 
able in  cash.  If  the  parties  of  the  first  part  be  interrupted  in  the 
delivery  of  the  above  coal  during  the  time  specified,  viz.,  April  1 
and  September  1,  current  year,  by  strikes  or  any  unforeseen  causes, 
additional  time  will  be  allowed  them  to  complete  the  delivery  of  the 
same,  not  exceeding  one  month.  Bills  of  lading  shall  he  prima  facie 
proof  of  delivery  in  regard  to  time  and  quality,  and  the  coal  when 
on  board  is  to  be  at  the  risk  of  the  parties  of  the  second  part.  The 
parties  of  the  first  part  agree  to  use  their  best  exertions  in  procuring 
vessels  at  as  low  rates  of  freight  as  possible  for  the  parties  of  the 
second  part,  and  are  to  attend  to  the  shipping  of  the  coal  without 
charge.  Bills  of  lading  are  to  be  made  to  the  treasurer  of  the  parties 
of  the  second  part,  either  to  the  Boston  &  Lowell  Railroad  Wharf  in 
Boston,  or  to  Phillips  "Wharf  in  Salem,  so  as  to  be  conveniently  de- 
livered to  the  cars  at  either  place,  as  customary,  as  the  parties  of  the 
second  part  may  direct.  The  parties  of  the  second  part  agree  to 
purchase  and  to  receive  the  above  coal  as  above  described  and  specified, 
and  to  pay  for  the  same  as  mentioned  above,  provided  the  first  cargo, 
which  shall  be  shipped  by  the  parties  of  the  first  part  as  early  as 
navigation  will  permit,  as  a  sample  cargo  of  the  coal,  shall  prove  sat- 
isfactory to  the  parties  of  the  second  part ;  a  reasonable  time  to  be 
allowed  for  testing  the  same ;  if  not  satisfactory,  then  this  agree- 
ment to  be  void." 

The  breach  alleged  was,  that  a  portion  of  the  coal  delivered  was 
inferior  to  the  alleged  sample,  and  that  another  portion  was  not  de- 
livered at  the  specified  time. 

At  the  trial  in  this  court,  before  Ames,  J.,  the  execution  of  the 
agreement  was  admitted,  and  it  appeared  "  that  the  sample  cargo  was 
received  by  the  plaintiffs,"  who  are  a  manufacturing  corporation, 
"  at  Lowell,  in  April,  1868,  and  that  seven  or  eight  cargoes  in  about 
a  month  afterwards  were  landed  at  Boston  and  Salem  and  forwarded 
to  the  plaintiffs'  works  at  Lowell."  And  there  was  evidence  tend- 
ing to  show  "  that  the  quality  of  the  coal  making  up  these  cargoes 
proved  on  trial  at  the  plaintiffs'  works  at  Lowell  to  be  inferior  to  the 
sample ;  that  they  objected  to  it,  and  notified  the  defendants  that  no 
more  of  that  kind  would  be  received  ;  and  that  the  delivery  at  Phila- 
delphia of  a  large  portion  of  the  coal  did  not  take  place  till  after 
October  1,  whereby  the  plaintiffs  were  obliged  to  pay  higher  prices 


MERRIMACK  MANUFACTURING  CO.  v.  QUINTARD.  327 

for  freights  and  insurance."  There  was  conflicting  evidence  upon 
the  question  "  whether  the  plaintiffs  agreed  to  waive  all  objection  to 
the  quality  of  the  coal  so  complained  of,  provided  the  remainder 
should  be  such  as  the  contract  required,  or  whether  that  matter  was 
merely  reserved  for  adjustment  on  final  settlement." 

"  In  order  to  show  what  increase  there  had  been  in  freights  and 
insurance,  resulting  from  the  delay  in  delivery,  the  plaintiffs  were 
permitted  to  show  what  had  been  the  actual  expense  to  them,  under 
these  heads,  upon  the  coal  shipped  within  the  period  limited  by  the 
contract,  and  what  had  been  the  actual  expense  for  the  same  items 
on  the  coal  shipped  after  that  time  ;  also  to  show  the  number  of 
tons  received  within  the  period  limited  by  the  contract,  and  the  aver- 
age rate  of  freight  on  each  ton,  and  the  same  things  as  to  that  por- 
tion of  the  coal  that  was  shipped  after  that  period  ;  and  also  the  in- 
crease in  the  cost  of  insurance.  The  treasurer  of  the  plaintiffs,  who 
testified  that  he  had  been  long  in  the  practice  of  buying  and  receiv- 
ing coal  from  Philadelphia,  was  permitted  to  testify  that  freights  on 
such  shipments  were  usually  higher  in  the  autumn  than  in  the  sum- 
mer months.  To  all  this  evidence  the  defendants  objected  as  inad- 
missible ;  but  the  judge  admitted  it. 

"  It  appeared  that,  from  a  strike  of  miners  or  some  other  cause, 
the  price  of  coal  advanced  in  Philadelphia  from  $3  50  per  ton  in 
July  to  $5  00  in  October  and  November,  when  the  last  coal  was  de- 
livered ;  and  that  freights  were  usually,  but  not  always,  higher  in  the 
autumn  than  in  the  summer  months ;  that  the  plaintiffs  paid  the 
freights  from  Philadelphia  on  all  the  cargoes  which  they  received ; 
that  they  made  no  complaint  of  delay  upon  any  shipment  previous 
to  October  1  ;  and  that  they  had  no  opportunity  to  test  the  quality 
of  the  coal,  until  they  began  to  use  it  in  their  works  at  Lowell ;  and 
it  did  not  appear  that  the  freights  in  the  latter  part  of  September 
were  lower  than  the  average  rate  during  the  three  months  from 
July  1. 

"  The  defendants  offered  evidence  tending  to  show  that,  shortly 
before  the  expiration  of  the  time  limited  by  the  contract,  and  when 
it  had  become  manifest  that  the  coal  could  not  all  be  delivered  within 
that  time,  their  agent  applied  to  the  plaintiffs'  treasurer  to  inquire 
whether  they  would  receive  after  the  time  limited  by  the  contract 
what  remained  to  be  delivered  ;  and  the  answer  was,  that  they  not 
only  would  consent  to,  but  insisted  upon,  its  delivery.  The  plaint- 
iffs offered  evidence  tending  to  show  that  the  treasurer  said  at  the 
same  time  that  the  plaintiffs  would  claim  damages  for  any  increase  in 
the  cost  of  the  coal  at  Lowell  produced  by  any  advance  in  freights 


328  SEVERAL   DELIVERIES. 

and  insurance.  The  defendants  denied  that  any  such  notice  was 
given  to  their  agent,  or  any  such  claim  made  ;  and  they  introduced 
evidence  tending  to  show  that  all  objection  on  the  part  of  the  plaint- 
iffs on  the  ground  of  the  delay  was  waived,  if  the  defendants  would 
agree  to  pay  the  increased  expense  of  insurance,  which  they  did 
agree  to  do. 

"  There  was  also  evidence  that  the  coal  objected  to  as  bad  in 
quality  arrived  at  Lowell  at  different  dates,  but  early  in  May,  and 
that  the  defendants  were  notified  that  it  was  not  satisfactory,  late  in 
that  month,  and  sent  one  of  their  firm  to  Lowell  to  examine  it ;  but 
whether  there  was  any  neglect  or  delay  in  giving  notice  of  the  ob- 
jection within  a  proper  time  was  one  of  the  questions  of  fact  sub- 
mitted to  the  jury  under  instructions  to  which  no  exception  was 
taken. 

"  The  defendants  asked  the  judge  to  rule  that,  if  the  plaintiffs 
had  any  claim  on  the  ground  of  delay  in  the  delivery,  their  damages 
were  to  be  estimated  by  the  difference  in  the  market  value  of  the 
coal  between  the  time  embraced  in  the  contract  and  the  time  of  the 
actual  delivery ;  and  they  objected  to  all  evidence  of  increased 
rates  of  freight  and  insurance,  on  that  ground.  They  also  asked  the 
judge  to  rule  that,  by  demanding  the  delivery  of  the  coal  after  the 
expiration  of  the  contract  period,  and  then  accepting  it,  the  plaintiffs 
had  waived  the  element  of  time  in  the  contract ;  and  insisted  that,  if 
the  plaintiffs  could  recover  for  difference  in  freight  and  insurance,  it 
would  be  only  for  the  excess  paid  above  the  rates  paid  for  shipments 
made  at  the  termination  of  the  contract  period,  and  not  above  the 
average  rates  of  that  period  ;  and  that,  if  they  had  any  claim  for  de- 
ficiency in  quality,  it  must  be  for  difference  in  value  at  the  place  of 
delivery,  and  not  at  Lowell,  the  place  of  consumption." 

The  judge  did  not  rule  as  requested,  but  instructed  the  jury 
"  that,  if  the  plaintiffs  received  the  coal  at  Lowell  without  any  com- 
plaint or  objection  on  account  of  its  bad  quality  or  the  delay  in  de- 
livery, it  would  be  prima  facie  evidence  of  a  waiver  of  all  objection 
on  either  of  these  grounds  ;  but  if,  on  trial  of  it  at  their  works,  and 
within  a  reasonable  time  thereafter,  they  gave  notice  to  the  defend- 
ants that  damages  or  allowance  would  be  claimed  on  account  of  its 
bad  quality,  such  receiving  of  the  coal  would  not  be  evidence  of  a 
waiver  of  that  objection  ;  that  if,  on  consenting  to  receive  that  por- 
tion of  the  coal  which  was  delivered  after  the  expiration  of  the  con- 
tract period,  they  gave  notice  that  they  should  claim  damages  for  in- 
creased expenses  growing  out  of  such  delay,  receiving  it  under  such 
circumstances  would  not  be  evidence  of  a  waiver  of  that  objection ; 


MERRIMACK  MANUFACTURING  CO.  v.  QUINTARD.  329 

that,  if  the  delay  in  the  delivery  of  the  coal  increased  its  cost  to  the 
plaintiffs,  by  increasing  the  charges  for  freight  and  insurance  above 
the  average  rate  for  those  items  or  shipments  during  the  contract 
period,  they  would  be  entitled  in  this  action  to  recover  such  actual 
increase  of  the  cost,  unless  some  waiver  or  modification  of  the  agree- 
ment in  that  respect  should  be  shown ;  and  that,  if  the  plaintiffs 
proved  that  any  portion  of  the  coal  delivered  was  inferior  in  quality 
to  what  they  were  entitled  to  receive,  they  were  entitled  to  recover 
an  allowance  for  such  deficiency  in  value,  or  for  the  difference  be- 
tween the  value  of  the  coal  delivered  at  Lowell  and  that  of  the  coal 
which  by  the  contract  they  were  entitled  to  receive,  unless  some 
waiver  of  objection  for  that  cause  were  shown,  without  reference  to 
the  value  at  the  place  of  shipment." 

The  jury  returned  a  verdict  for  the  plaintiffs,  and  the  defendants 
alleged  exceptions. 

Colt,  J. — The  plaintiffs  claim  damages  both  on  account  of  the  in- 
ferior quality  of  coal  delivered,  and  the  failure  to  deliver  within  the 
time  named  in  the  contract.  The  defendants  insist  that  both  claims 
were  waived. 

[The  learned  judge  then  held  that  as  there  had  been  conflicting 
evidence  as  to  whether  the  plaintiffs  had  unconditionally  waived 
their  right  to  have  the  coal  delivered  according  to  the  terms  of  the 
contract,  in  respect  to  both  time  and  quality,  this  question  had  been 
properly  left  to  the  jury,  citing  Fox  v.  Harding  (7  Cush.  516,  520).] 

As  to  the  rule  of  damages,  the  plaintiffs  are  entitled  to  recover 
for  such  losses  as  were  the  direct  and  natural  consequence  of  the  de- 
fendants' failure  to  perform,  and  also  for  such  as  were  foreseen,  or 
may  reasonably  be  supposed  to  have  been  foreseen,  at  the  time  of 
making  the  contract.  To  ascertain  what  these  were,  resort  must  be 
had  to  the  terms  of  the  contract  for  its  meaning,  as  applied  to  the 
subject-matter,  and  as  interpreted  by  the  general  and  known  usages 
of  the  business  to  which  it  refers.  It  was  in  substance  an  agree- 
ment to  deliver  on  board  vessels  at  Philadelphia,  to  the  plaintiffs, 
who  are  a  manufacturing  company  at  Lowell,  at  a  fixed  price,  a  large 
quantity  of  coal,  in  equal  monthly  proportions,  during  the  time  in- 
cluded in  the  contract.  A  sample  was  to  be  sent  and  tested  by  the 
plaintiffs,  and  bills  of  lading  made  to  wharves  either  in  Salem  or  Bos- 
ton, at  the  plaintiffs'  option,  so  as  to  be  conveniently  delivered  to 
the  cars  in  either  place,  as  customary,  and  without  doubt  contem- 
plating its  further  transportation  by  rail  to  the  plaintiffs'  place  of 
business.  It  was  therefore  not  simply  the  sale  of  property  to  be  de- 
livered at  a  particular  time  and  place,  but  it  was  an  agreement  for 


330  SEVERAL   DELIVERIES. 

the  delivery  of  property  to  be  transported  by  vessels  and  by  railroad, 
-at  the  plaintiffs'  expense,  to  their  place  of  business  in  Lowell. 

This  construction  of  the  contract  fully  sustains  the  rule  of  dam- 
ages laid  down  at  the  trial.  The  loss  from  inferior  quality,  to  which 
the  plaintiffs  are  entitled,  is  the  loss  which  they  sustained  at  Lowell. 
There  is  nothing  in  the  case  to  show  that  they  were  bound,  or  that 
it  was  expected  they  would  be  bound,  by  any  prior  acceptance  of  it, 
at  the  place  of  shipment  or  elsewhere ;  and  so  the  loss  by  the  in- 
creased charges  for  freight  and  insurance  is  a  fair  measure  of  dam- 
age to  them,  ascertained  by  the  failure  to  deliver  in  time.  Nor  do 
we  perceive  that  any  wrong  is  done  by  taking  the  increased  rates  of 
freight  and  insurance  above  the  average  rates  during  the  contract 
period,  especially  as  it  does  not  appear  that  the  average  rates  for  ship- 
ment were  higher  than  the  rates  paid  at  the  termination  of  the  con- 
tract period.  These  items  of  damage  are  fairly  contemplated  by  the 
contract. 

The  difference  in  market  value  of  the  coal  between  the  time  of 
actual  delivery,  and  the  time  it  should  have  been  delivered,  as  a  rule 
of  damages,  is  not  applicable.  The  plaintiffs  received  all  the  coal 
called  for  by  the  contract,  at  the  contract  price,  and  do  not  claim 
damages  for  any  deficiency  in  quantity.  They  are  entitled  to  the 
benefit  of  their  contract,  although  the  market  value  had  increased  by 
the  delay. 

The  objections  taken  to  the  admissibility  of  the  plaintiffs'  evi- 
dence appear  by  this  discussion  to  have  been  properly  overruled.  It 
was  clearly  competent  for  the  treasurer  to  testify  that  he  had  long 
been  in  the  practice  of  buying  and  receiving  coal  from  Philadelphia, 
and  that  freights  were  usually  higher  in  autumn  than  in  summer. 
The  understanding  of  the  parties  must  be  ascertained  by  the  nature 
of  the  traffic  to  which  the  contract  refers  (Cutting  v.  Grand  Trunk 
Kailway  Co.  13  Allen,  381 ;  Batchelder  v.  Sturgis,  3  Cush.  201,  204  ; 
Bartlett  v.  Blanchard,  13  Gray,  429). 

Exceptions  overruled. 


BOOTH  v.  THE  SPUYTEN  DUYVIL  ROLLING  MILL  CO.  331 


CoOTEACT   FOE    AbTICLE  TO  BE    MANUFACTURED  |    SeVEEAL  DeLIVEEIES. 


COLTET    OF    APPEALS,    NEW   YOEK. 

[1875.]    Booth  v.  The  Spuyten  Duyvil  Rolling  Mill  Co. 

(60  IS".  Y.  487). 

To  charge  a  party  to  a  contract  with  responsibility  for  special  consequences  which  may 
result  from  breaking  it,  notice  of  such  consequences  must  have  been  given  under 
circumstances  implying  that  it  formed  the  basis  of  the  agreement. 

The  plaintiff,  owning  a  patent  for  steel-capped  rails,  contracted 
to  furnish  the  New  York  Central  Railroad  Company,  by  May  31, 
18G8,  with  400  tons  of  these  rails,  for  which  the  company  agreed  to 
pay  $135  per  ton.  The  defendant  agreed  to  make  and  deliver  at 
its  mill  to  the  plaintiff,  by  April  1,  1868,  100  tons  of  steel  caps 
for  rails,  with  the  privilege  to  deliver  them  in  several  deliveries  of 
not  less  than  twenty  tons  each,  during  January,  February  and  March. 
The  defendant,  before  making  this  agreement,  was  informed  of  the 
plaintiff's  contract  with  the  Central  Railroad  Co.,  and  that  the  caps 
were  necessary  to  be  used  in  making  the  rails,  but  was  not  informed 
of  the  price  to  be  paid  for  the  rails.  Both  parties  knew  the  caps 
could  not  be  procured  elsewhere  in  time  to  enable  the  plaintiff  to 
fulfill  the  agreement  with  the  Central  Co.  The  iron  base  and  steel 
caps  of  the  rails,  when  separated,  had  no  market  value,  nor  was  there 
any  market  value  for  the  completed  rail,  which  was  a  newly  invented 
article.  The  defendant  failed  to  deliver  the  steel  caps  as  agreed,  in 
consequence  of  which  the  plaintiff  was  prevented  from  fulfilling  his 
contract  with  the  railroad  company.  March  10th,  1868,  the  defend- 
ant's rolling  mill  was  burned,  and  the  defendant  thereby  prevented 
from  completing  its  contract  with  the  plaintiff  within  the  time 
limited. 

The  action  was  brought  to  recover  damages  for  that  failure ;  and 
the  referee  before  whom  it  was  tried  found  that  the  defendant  was 
liable  for  the  loss  of  the  profits  which  would  have  been  derived 
from  the  sale  to  the  railroad  company.  The  judgment  on  this  report 
having  been  affirmed  by  the  general  term  of  the  Supreme  Court,  the 
defendant  appealed  to  this  court. 

Chuech,  C.  J.,  delivering  the  opinion  of  the  court,  after  holding 
that  the  defendant  was  not  excused  from  the  performance  of  its 
contract  by  the  destruction  of  its  mill,  proceeded  as  follows :     The 


332  SEVERAL  DELIVERIES. 

more  important  question  relates  to  the  proper  rule  of  damages. 
The  referee  finds  that,  prior  to  the  contract  with  the  defendant,  the 
plaintiff  had  contracted  with  the  New  York  Central  Railroad  Com- 
pany to  sell  and  deliver  to  it,  by  the  first  of  June,  400  tons  of  rails, 
to  be  composed  of  an  iron  foundation  and  steel  caps,  for  the  invention 
of  which  the  plaintiff  had  obtained  a  patent ;  and  that  when  the  con- 
tract was  made  with  the  defendant  he  informed  it  that  he  wanted  the 
caps  to  perform  the  contract ;  that  if  they  had  been  delivered  by  the 
first  of  April  the  plaintiff  could  have  performed  his  contract ;  and  he 
finds,  also,  facts  showing  that  the  plaintiff  would  have  realized  the 
amount  of  profits  for  which  the  recovery  was  ordered. 

The  damages  for  which  a  party  may  recover  for  a  breach  of  con- 
tract are  such  as  ordinarily  and  naturally  flow  from  the  non-perform- 
ance. They  must  be  proximate  and  certain,  or  capable  of  certain 
ascertainment,  and  not  remote,  speculative  or  contingent.  Itjs  pre- 
sumed that  the  parties  contemplate  the  usual  and  natural  conse- 
quences of  a  breach  when  the  contract  is  made ;  and  if  the  contract 
is  made  with  reference  to  special  circumstances,  fixing  or  affecting 
the  amount  of  damages,  such  special  circumstances  are  regarded 
within  the  contemplation  of  the  parties,  and  damages  may  be  as- 
sessed accordingly.  For  a  breach  of  an  executory  contract  to  sell 
and  deliver  personal  property,  the  measure  of  damages  is,  ordinarily, 
the  difference  between  the  contract  price  and  the  market  value  of 
the  article  at  the  time  and  place  of  delivery  ;  but  if  the  contract  is 
made  to  enable  the  plaintiff  to  perform  a  sub-contract,  the  terms  of 
which  the  defendant  knows,  he  may  be  held  liable  for  the  difference 
between  the  sub-contract  price  and  the  principal  contract  price,  and 
this  is  upon  the  ground  that  the  parties  have  impliedly  fixed  the 
measure  of  damages  themselves,  or,  rather,  made  the  contract  upon 
the  basis  of  a  fixed  rule  by  which  they  may  be  assessed.  The  au- 
thorities cited  on  both  sides  recognize  these  general  rules  (16  N.  Y. 
489 ;  114  C.  L.  E.  445 ;  7  L.  R.  C.  P.  587  ;  26  L.  &  Eq.  398 ;  34 
N.  Y.  364 ;  40  Id.  422 ;  96  C.  L.  R.  82  ;  54  K  Y.  586 ;  L.  R.  3  Q. 
B.  181 ;  102  E.  C.  L.  [1  Ell.  &  Ell.],  602  ;  L.  R.  3  C.  P.  499 ;  L.  R. 
8  C.  P.  131).  The  difficulty  is  in  properly  applying  general  rule 
to  the  facts  of  each  particular  case.  Here  it  is  found,  in  substance, 
that  the  contract  was  made  to  enable  the  plaintiff  to  perform  his 
contract  with  the  railroad  company,  and  that  this  was  known  to  the 
defendant.  It  is  insisted,  however,  that  as  the  price  which  the  rail- 
road company  was  to  pay  the  plaintiff  for  the  rails  was  not  commu- 
nicated to  the  defendant,  it  cannot  be  said  that  it  made  the  contract 
with  reference  to  such  price.     It  is  expressly  found  that  there  was 


BOOTH  v.  THE  SPUYTEN  DUYVIL  ROLLING  MILL  CO.  333 

no  market  price  for  the  steel  caps,  and  it  does  not  appear  that  there 
was  any  market  price  for  the  completed  rail.  The  presumption  is, 
from  the  facts  proved,  that  there  was  not.  It  was  a  new  article,  and 
the  contract  was  made  to  bring  it  into  use.  The  result  of  the  able 
and  elaborate  argument  of  the  learned  counsel  for  the  defendant  is, 
that  in  such  a  case,  that  is  when,  although  the  contract  is  made  with 
reference  to  and  to  enable  the  plaintiff  to  perform  a  sub-contract,  yet 
if  the  terms  of  the  sub-contract,  as  to  price,  are  unknown  to  the 
vendor,  and  there  is  no  market  price  for  the  article,  the  latter  is  not 
liable  for  any  damages,  or,  what  is  the  same  thing,  for  only  nominal 
damages.  I  have  examined  all  the  authorities  referred  to,  and  I  do 
not  find  any  which  countenances  such  a  position,  and  there  is  no 
reason  for  exempting  a  vendor  from  all  damages  in  such  a  case.  It 
is  not  because  the  vendee  has  not  suffered  loss,  as  he  has  lost  the 
profits  of  his  sub-contract ;  it  is  not  because  such  profits  are  uncer- 
tain, as  they  are  fixed  and  definite,  and  capable  of  being  ascertained 
with  certainty ;  it  is  not  because  the  parties  did  not  contract  with 
reference  to  the  sub-contract,  when  it  appears  that  the  contract  was 
made  for  the  purpose  of  enabling  the  vendee  to  perform  it.  If  the 
article  is  one  which  has  a  market  price,  although  the  sub-contract  is 
contemplated,  there  is  some  reason  for  only  imputing  to  the  vendor 
the  contemplation  of  a  sub-contract  at  that  price,  and  that  he  should 
not  be  held  for  extravagant  or  exceptional  damages  provided  for  in 
the  sub-contract.  But  the  mere  circumstance  that  the  vendor  does 
not  know  the  precise  price  specified  in  the  contract  will  not  exoner- 
ate him  entirely.  Fie  cannot,  in  any  case,  know  the  precise  market 
price  at  the  time  for  performance.  Knowledge  of  the  amount  of 
damages  is  impracticable,  and  is  not  requisite.  It  is  only  requisite 
that  the  parties  should  have  such  a  knowledge  of  special  circum- 
stances, affecting  the  question  of  damages,  as  that  it  may  be  fairly 
inferred  that  they  contemplated  a  particular  rule  or  standard  for 
estimating  them,  and  entered  into  the  contract  upon  that  basis.  In 
Hadley  v.  Baxendale  (9  Ex.  341),  which  is  a  leading  case  on  the  sub- 
ject in  the  English  courts,  the  court,  after  speaking  of  the  general 
rule,  says :  "  If  the  special  circumstances  under  which  the  contract 
was  actually  made  were  communicated  by  the  plaintiffs  to  the  de- 
fendants, and,  thus  known  to  both  parties,  the  damages  resulting 
from  the  breach  of  such  a  contract,  which  they  would  reasonably 
contemplate,  would  be  the  amount  of  injury  which  would  ordinarily 
follow  from  a  breach  of  the  contract  under  the  special  circumstances 
so  known  and  communicated." 

This  case  has  been  frequently  referred  to,  and  the  rule,  as  laid 


334  SEVERAL   DELIVERIES. 

down,  somewhat  criticised ;  but  the  criticism  is  confined  to  the  char- 
acter of  the  notice,  or  communication  of  the  special  circumstances. 
Some  of  the  judges,  in  commenting  upon  it,  have  held  that  a  bare 
notice  of  special  consequences  which  might  result  from  a  breach  of 
the  contract,  unless  under  such  circumstances  as  to  imply  that  it 
formed  the  basis  of  the  agreement,  would  not  be  sufficient.  I  concur 
with  the  views  expressed  in  these  cases ;  and  I  do  not  think  the 
court,  in  Hadley  v.  Baxendale,  intended  to  lay  down  any  different 
doctrine  (see  authorities  before  cited).  Upon  the  point  involved 
here,  whether  the  defendant  is  exenrpted  from  the  payment  of  any 
damages  when  there  is  no  market  price,  and  the  price  in  the  sub- 
contract is  not  known,  there  is  no  conflict  of  authority  that  I  have 
been  able  to  discover.  In  the  first  place,  there  is  considerable  rea-i 
son  for  the  position  that  where  the  vendor  is  distinctly  informed 
that  the  purchase  is  made  to  enable  the  vendee  to  fulfill  a  sub-con- 
tract, and  knows  that  there  is  no  market  price  for  the  article,  he 
assumes  the  risk  of  being  bound  by  the  price  named  in  the  sub-con- 
tract, whatever  that  may  be,  but  it  is  unnecessary  to  go  to  that  ex- 
tent. It  is  sufficient  to  hold,  what  appears  to  me  to  be  clearly  just, 
that  he.  is  bound  by  the  price,  unless  it  is  shown  that  such  price  is 
extravagant,  or  of  an  unusual  and  exceptional  character.  The  pre- 
sumption is,  that  the  price  at  which  the  property  was  sold  was  its 
fair  value,  and  that  is  to  be  taken  as  the  market  price  for  the  pur- 
pose of  adjusting  the  damages  in  the  particular  case.  This  presump- 
tion arises  here.  The  profits  were  not  unreasonable,  certainly  not 
extravagant.  About  fifteen  per  cent,  was  allowed  for  profits,  includ- 
ing the  use  of  the  patent,  and  no  evidence  was  offered,  or  claim 
made,  that  the  price  was  not  the  fair  value  of  the  article.  We  must 
assume  that  it  was,  and,  hence,  within  the  contemplation  of  the  par- 
ties. The  case  of  P.orries  v.  Hutchinson  (114  E.  C.  L.  443)  is  quite 
analogous  to  this.  The  article,  caustic  soda,  was  purchased  to  be 
sold  to  a  foreign  correspondent,  which  the  defendant  knew.  There 
were  several  items  of  damage  claimed.  The  profit  on  the  sub-con- 
tract was  conceded,  and  the  money  paid  into  court,  but  the  court 
held,  in  passing  judgment,  that  the  plaintiff  was  entitled  to  recover 
such  profits.  Erle,  C.  J.,  said :  "  Here  the  vendor  had  notice  that 
the  vendee  was  buying  the  caustic  soda,  an  article  not  ordinarily 
procurable  in  the  market,  for  the  purpose  of  resale  to  a  sub-vendee, 
on  the  continent.  He  made  the  contract,  therefore,  with  the  knowl- 
edge that  the  buyers  were  buying  for  the  purpose  of  fulfilling  a  con- 
tract which  they  had  made  with  a  merchant  abroad." 

The  case  of  Elbinger  v.  Armstrong  (L.  K.  9  Q.  B.  473)  also 


BOOTH  v.  THE  SPUYTEX  DCYVIL  ROLLING  MILL  CO.  335 

illustrates  the  rule.  That  was  a  contract  for  the  purchase  of  666 
sets  of  wheels  and  axles,  which  the  plaintiff  designed  to  use  in  the 
manufacture  of  wagons,  and  which  he  had  contracted  to  sell  and 
deliver  to  a  Russian  company  by  a  certain  day,  or  forfeit  two  rou- 
bles a  day.  The  defendant  was  informed  of  the  contract,  but  not  of 
the  amount  of  penalties.  Some  delay  occurred  in  the  delivery,  in 
consequence  of  which  the  plaintiff  had  to  pay  100/.  in  penalties,  and 
the  action  was  brought  to  recover  that  sum.  There  was  no  market 
in  which  the  goods  could  be  obtained,  and  the  same  point  was  made 
there  as  here,  that  the  plaintiff  was  only  entitled  to  nominal  dam- 
ages ;  but  the  court  says :  "  When,  from  the  nature  of  the  article, 
there  is  no  market  in  which  it  can  be  obtained,  this  rule  (the  differ- 
ence between  the  contract  and  market  value)  is  not  applicable,  but  it 
would  be  very  unjust  if,  in  such  cases,  the  damages  must  be  nom- 
inal." 

It  is  true  that  the  court  held  that  the  plaintiff  could  not  recover 
the  penalties  as  a  matter  of  right,  mainly  upon  the  ground  that  such 
a  consequence  was  not,  from  the  nature  of  the  notice,  contemplated 
by  the  parties ;  and  yet  the  judgment,  directing  the  amount  of  the 
penalties  paid,  was  allowed  to  stand,  as  being  a  sum  which  the  jury 
might  reasonably  find.  Cory  v.  Thames  Iron  Works  Co.  (L.  R. 
3  Q.  B.  181)  decided  that  when  the  article  purchased  was  designed 
by  the  purchaser  for  a  peculiar  and  exceptional  purpose  unknown  to 
the  seller,  the  latter  was,  nevertheless,  liable  for  the  damages  which 
would  have  been  incurred  if  used  for  the  purpose  which  the  seller 
supposed  it  would  be  used  for. 

The  case  of  Home  v.  Midland  Railway  Co.  (L.  R.  8  C.  P.  131) 
is  not  in  conflict  with  the  position  of  the  plaintiff.  In  that  case  the 
article  had  a  well  known  market  value.  The  sub-contract  was  at  an 
unusual  and  extravagant  price,  of  which  the  defendant  was  not  in- 
formed. Besides,  the  defendant  was  a  carrier,  and  it  was  seriously 
doubted  by  some  of  the  judges  whether  the  same  rule  would  apply 
to  a  carrier  as  to  a  vendor.  The  question  in  all  these  cases  is,  what 
was  the  contract ;  and  a  carrier  who  is  bound  to  take  property  offered 
at  current  rates,  would  not,  perhaps,  be  brought  within  the  principle 
by  a  notice  of  ulterior  consequences,  unless  such  responsibility  was 
sought  to  be  imposed  as  a  condition,  and  he  have  an  opportunity  to 
refuse  the  goods ;  or  unless  a  special  contract  at  increased  rates  was 
shown.  The  decision  was  placed  upon  the  ground  that  the  excep- 
tional price  was  not  within  the  contemplation  of  the  parties.  The 
authorities  in  this  State  support  the  doctrine  of  liability  in  a  case 
like  this.    The  cases  of  Griffin  v.  Colver  (16  K  Y.  189  ;  ante,  p.  269) 


336  SEVERAL   DELIVERIES. 

and  Messmore  v.  K  Y.  Shot  Co.  (40  K  Y  422 ;  ante,  p.  302), 
especially  the  latter,  decide  the  same  principle.  The  defendant 
in  that  case  was  informed  of  the  price  of  the  sub-contract,  bnt 
the  decision  was  not  put  upon  that  ground.  This  case  presents 
all  the  elements  which  have  been  recognized  for  the  application  of 
the  rule  of  liability.  The  plaintiff  contracted  with  the  defendant 
expressly  to  enable  him  to  perform  his  contract  with  the  railroad 
company,  which  the  defendant  knew.  The  goods  could  not  have 
been  obtained  elsewhere  in  time  ;  and  in  consequence  of  the  failure 
of  the  defendant  to  perform  his  contract,  the  plaintiff  lost  the  benefit 
of  his  sub-contract.  It  is  not  claimed  that  the  price  at  which  the 
completed  rails  were  agreed  to  be  sold  was  extravagant  or  above 
their  value  ;  and  as  there  was  no  market  price  for  the  article,  the 
fact  that  the  defendant  was  not  informed  of  the  precise  price  in  the 
sub-contract,  does  not  affect  its  liability.  Nor  does  the  fact  that  the 
defendant's  contract  does  not  embrace  the  entire  article  resold,  re- 
lieve it  from  the  consequences  of  non-performance.  It  was  a  mate- 
rial portion  of  the  rail,  without  which  it  could  not  be  made ;  and 
solely  by  reason  of  the  failure  of  the  defendant,  the  plaintiif  failed 
to  perform  his  contract,  and  thereby  lost  the  amount  for  which  he 
has  recovered.  We  concur  with  the  opinion  of  the  referee  and  court 
below,  in  their  views,  holding  the  defendant  liable. 

The  judgment  must  be  afiirmed. 

All  concur. 

Judgment  affirmed. 


Contract  foe  Several  Deliveries  ;   Breach  Before  Time  for 
Complete  Performance, 


court  of  common  pleas. 

[1873.]     Eoper  v.  Johnson  (L.  E.  8  C.  P.  167  ;   42  L.  J.  R. 

K".  S.  C.  P.  G5). 

The  defendant,  in  April,  agreed  to  sell  and  the  plaintiffs  to  buy  3,000  tons  of  coal,  at  8s. 
6d.  per  ton,  "to  be  taken  during  the  months  of  May,  June,  July,  and  August."  No 
coal  having  been  taken  by  the  plaintiffs  in  May,  the  defendant  wrote  on  the  31st  of 
that  month,  desiring  the  plaintiffs  to  consider  the  contract  canceled.  The  plaintiffs 
did  not  assent  to  this ;  but  on  the  11th  of  June  the  defendant  definitively  refused  to 
deliver  any  coal,  and  on  the  3d  of  July  the  plaintiffs  brought  an  action  for  this 
breach. 


ROPER   v.    JOHNSON.  337 

At  the  trial,  winch  took  place  on  the  13th  of  August,  the  plaintiffs  proved  that  the  price 
of  coal  had  risen  during  the  whole  period  since  the  beginning  of  May,  and  was  still 
rising.  No  evidence  was  given  to  show  whether  the  plaintiffs  could  have  gone  into 
the  market  and  obtained  a  new  contract  for  coals. 

Hdd,  that  in  the  absence  of  evidence  on  the  part  of  the  defendant,  that  the  plaintiffs 
could  have  obtained  a  new  contract  on  such  terms  as  to  mitigate  their  loss,  the  true 
measure  of  damages  was  the  sum  of  the  differences  between  the  contract  price  and 
the  market  price  at  the  several  periods  for  delivery,  notwithstanding  that  the  last 
period  had  not  elapsed  when  the  action  was  brought,  or  when  the  cause  was  tried. 

The  cause  was  tried  before  Brett,  J.,  at  the  last  summer  assizes 
at  Liverpool.  The  plaintiffs  are  colliery  proprietors  and  coal  mer- 
chants carrying  on  business  at  Ackhurst  Hall  Colliery,  near  Wigan, 
and  also  at  Manchester.  The  defendant  is  a  colliery  proprietor  at 
Hindley  Green,  St.  Helen's.  In  April,  1872,  a  negotiation  took 
place  between  the  plaintiffs  and  the  defendant  for  the  sale  by  the 
latter  to  the  former  of  3,000  tons  of  coal  to  be  delivered  in  equal 
monthly  quantities  during  the  months  of  May,  June,  July,  and 
August.  Subsequently,  the  following  correspondence  passed  be- 
tween the  parties  : 

April  18th,  1872.  Defendant  to  plaintiffs  :  "  I  beg  to  inform  you 
that  my  lowest  price  for  coal  at  pit  is  8s.  6d.  per  ton,  less  2£  per 
cent,  discount ;  but  could  not  bind  myself  to  supply  the  quantity 
named." 

April  25th,  1872.  Defendant  to  plaintiffs  :  "  According  to  my 
promise,  to-day,  I  now  offer  you  3,000  tons  of  coal  to  be  delivered 
during  the  months  of  May,  June,  July,  and  August,  at  8s.  Qd.  per 
ton,  less  2£  per  cent,  discount,  at  my  colliery,  Hindley.  This  offer 
to  remain  open  until  Monday  next." 

April  26th,  1872.  Plaintiffs  to  defendant :  "  We  hereby  accept 
your  offer  of  3,000  tons  of  Wigan,  4  and  5  foot  coal,  at  85.  6d.  per 
ton,  less  2£  per  cent,  discount,  at  your  siding,  Hindley  Green,  to  be 
taken  during  the  months  of  May,  June,  July,  August,  and  Septem- 
ber next.  We  have  added  September,  in  accordance  with  the  ar- 
rangement entered  into  personally  yesterday." 

April  27th,  1872.  "  Defendant  to  plaintiffs  :  "  I  can  only  deliver 
during  the  months  of  May,  June,  July,  and  August,  and  to  be  ex- 
empt in  case  of  strikes  and  accidents.  As  you  are  strangers  to  me, 
I  shall  require  cash  or  a  satisfactory  reference." 

April  29th,  1872.  Plaintiffs  to  defendant :  "  We  agree  to  take 
delivery  in  the  months  named,  viz.,  May,  June,  July,  and  August, 
although  we  think  it  rather  strange,  after  the  previous  under- 
standing.     With  regard  to  references,  you  had  better  make  your 


338  SEVERAL   DELIVERIES. 

own  inquiries  about  us  ;  and,  if  they  do  not  result  satisfactory,  we 
will  pay  cash." 

April  30th,  1872.  Plaintiffs  to  defendants;  "Your  favor  of 
this  morning  is  to  hand.*  We  think  you  are  giving  yourself  unnec- 
essary trouble.  We  thought  you  would  make  the  usual  inquiry 
through  your  bankers.  However,  we  beg  to  refer  you  to  the  Man- 
chester and  Liverpool  District  Bank,  Wigan.  We  purpose  taking 
the  coal  in  regular  daily  quantities  in  your  wagons,  and  propose  send- 
ing you  instructions  in  the  course  of  next  week." 

May  31st,  1872.  Defendant  to  plaintiffs  :  "  As  you  have  not 
taken  the  coal  according  to  arrangement,  you  must  consider  the  con- 
tract canceled." 

June  1st,  1872.  Plaintiffs  to  defendant :  "  Yours  of  the  31st 
ultimo  duly  received,  in  which  you  say  that  the  contract  for  3,000 
tons  coal  must  be  considered  canceled.  In  reply,  we  beg  to  say  that 
we  are  not  aware  of  any  circumstances  to  justify  the  same,  and  there- 
fore consider  the  contract  as  still  in  force." 

June  10th,  1872.  Plaintiffs  to  defendant :  "  We  beg  to  inform 
you  that  we  have  ordered  twenty-five  wagons  to  be  sent  to  your  col- 
liery, which  be  good  enough  to  load  and  forward  to  Garston  to  our 
order.  The  wagons  will  be  kept  constantly  running,  so  that  deliv- 
eries will  be  steadily  taken." 

June  11th,  1872.  Defendant  to  plaintiffs:  "I  am  in  receipt  of 
yours  of  yesterday,  and  beg  to  state  I  shall  not  load  your  wagons  if 
sent  to  my  colliery.  The  terms  of  my  offer,  in  my  letter  to  you 
of  the  25th  of  April  last,  not  having  been  accepted,  I  cannot 
now  supply  you  with  coal  until  the  price  and  conditions  are  first 
arranged.  I  left  the  matter  opened  from  the  25th  of  April  to 
the  31st  of  May,  to  enable  you  to  accept  my  proposal.  You  not 
having  done  so,  I  wrote  you  on  the  latter  date  to  the  effect  that 
you  might  consider  our  negotiation  as  to  the  3,000  tons  at  an 
end." 

June  12th,  1872.  Plaintiffs  to  defendant :  "  We  are  in  receipt 
of  your  favor  of  the  11th.  The  3,000  tons  of  coal  bought  from 
you  are  already  sold,  and  we  have  sent  wagons  to  your  colliery  to 
be  filled ;  in  default  of  which,  we  shall  charge  you  with  demur- 
rage, as  we  consider  that  nothing  has  occurred  to  invalidate  the 
contract." 

June  15th,  1872.  Plaintiffs  to  defendant :  "  We  have  forward- 
ed to  Swan  Lane  Colliery,  nine    wagons,  which    arrived    at   your 

*  The  letter  referred  to  was  not  put  in. 


ROPER   v.   JOHNSON.  339 

siding  yesterday.  Be  good  enough  to  load  them  on  our  account, 
and  give  them  quick  dispatch,  as  we  have  a  vessel  waiting  to  be 
filled." 

June  19th,  1872.  Plaintiffs'  attorney  to  defendant:  '"'Messrs. 
Roper  &  Co.  have  consulted  us  upon  the  subject  of  your  breach 
of  contract  relative  to  3,000  tons  of  coal;  and  we  beg  to  inform 
you  that,  unless  the  amount  of  the  damage  sustained  by  our  clients, 
300Z.,  be  paid  to  us  by  Friday  next,  a  writ  will  be  issued  against 
you." 

The  defendant  replied,  referring  to  his  solicitor ;  and  the  writ  in 
this  action  was  issued  on  the  3d  of  July. 

The  plaintiffs  claimed  to  be  entitled  to  damages  estimated  ac- 
cording to  the  advance  in  the  market  price  of  coal  at  the  various 
periods  at  which  the  coal  contracted  for  should  have  been  delivered, 
viz.,  in  equal  monthly  quantities,  750  tons  in  each  of  the  four  months 
of  May,  June,  July,  and  August.  It  was  proved  that,  from  the  14th 
to  the  29th  of  May,  the  market  price  of  coal  had  advanced  (in  Liver- 
pool, where  the  contract  was  made),  6d.  per  ton ;  between  the  29th 
and  31st,  Is.  6d.  per  ton ;  between  the  1st  and  30th  of  June,  2s.  per 
ton  ;  between  the  1st  and  15th  of  July,  2s.  6d.  per  ton  ;  between  the 
15th  and  19th,  3s.  6d.  per  ton  ;  between  the  19th  of  July  and  the 
15th  of  August,  5s.  per  ton ;  and  between  that  day  and  the  31st  of 
August,  it  was  estimated  that  the  rise  would  be  10s.  per  ton.  The 
trial  took  place  on  the  13th  of  August.  In  addition  to  this,  the 
plaintiffs  claimed  a  sum  for  wagon  expenses  or  demurrage,*  their 
whole  claim  amounting  to  505Z.  2s.  56?. 

For  the  defendant  it  was  insisted  that,  the  plaintiffs  not  having 
taken  any  coal  in  all  the  month  of  May,  the  defendant  was  entitled 
to  declare  the  contract  at  an  end ;  that,  assuming  the  plaintiffs  to  be 
entitled  to  recover  anything,  the  utmost  damages  they  could  claim 
would  be  the  difference  between  the  contract  price  and  market 
price  of  coal  on  the  day  on  which  the  defendant  refused  to  perform 
the  contract ;  and  that,  at  all  events,  they  were  not  entitled  to 
speculate  upon  the  possible  rise  in  the  market  after  the  day  of 
trial. 

A  verdict  was  taken  for  the  plaintiffs  for  505?.  2s.  5d.,  subject 
to  leave  reserved  to  the  defendant  to  enter  a  verdict  for  him  or  a 
nonsuit,  if  the  court  should  be  of  opinion  that  the  plaintiffs,  not 
having  performed  the  contract  by  taking  any  coal  in  May,  were  not 
entitled  to  recover ;  or  to  reduce  the  damages  to  such  sum  as  the 
court  should  direct. 

*  This  claim  was  abandoned  on  the  argument  of  the  rule. 


340  SEVERAL   DELIVERIES. 

A  rule  was  obtained  and  argued  accordingly. 

C.  Russell,  Q.  C,  intimated  his  willingness  to  consent  to  a  reduc- 
tion of  the  damages,  at  the  suggestion  of  the  court,  to  400^. 

Keating,  J. — The  question  in  this  case  arises  upon  a  contract  by 
which  the  defendant  agreed  to  deliver  coals  to  the  plaintiffs  at  cer- 
tain specified  periods,  at  8s.  6d.  per  ton.  The  quantity  to  be  deliv- 
ered was  3,000  tons,  and  the  deliveries  were  to  take  place  in  the 
months  of  May,  June,  July,  and  August,  1872.  There  was  some 
controversy  as  to  the  facts  ;  but  there  can  be  no  doubt  that  the  de- 
fendant, soon  after  the  contract  was  entered  into,  intimated  his  de- 
termination not  to  perform  it ;  and  it  seems  to  be  agreed  that,  at  all 
events,  that  repudiation  of  the  contract  was  accepted  by  the  plaint- 
iffs on  the  3d  of  July,  when  they  brought  this  action  for  the  non- 
performance of  it.  The  difficulty  as  to  the  measure  of  damages,  or 
rather  as  to  the  principle  on  which  the  damages  are  to  be  assessed, 
arises  from  the  circumstance  of  the  time  for  delivery  of  the  coal  ex- 
tending over  the  whole  of  the  month  of  August.  Had  the  action 
been  delayed  until  after  the  expiration  of  the  time  for  the  comple- 
tion of  the  contract,  we  should  have  entertained  but  little  doubt ; 
for,  the  case  would  then  have  been  distinctly  within  the  authority 
of  Brown  v.  Muller  (Law  Rep.  7  Ex.  319),  and  we  should  have  con- 
sidered ourselves  bound  by  that  decision.  But  the  difficulty  here 
arises  from  the  fact  of  the  action  having  been  brought  on  the  3d  of 
July.  In  Brown  v.  Muller  (supra),  it  was  clearly  decided  that, 
where  the  contract  is  for  the  delivery  of  goods  in  equal  proportions 
in  a  given  number  of  months,  and  the  action  for  non-delivery  is  not 
brought  until  after  the  expiration  of  the  period  stijmlated  for  the 
last  delivery,  the  proper  measure  of  damages  is  the  sum  of  the  dif- 
ferences between  the  contract  and  market  prices  on  the  last  day  of 
each  month  respectively.  That  was  the  proper  measure  of  damages 
there.  But  here  the  breach  occurred  before  the  end  of  the  period 
over  which  the  contract  extended  ;  and  the  question  is,  what  is  the 
proper  measure  of  damages  in  such  a  case  ?  Mr.  Herschell,  in  his 
very  able  argument,  insisted  that  the  true  measure  is  the  loss  which 
had  resulted  to  the  plaintiffs  at  the  time  of  such  breach,  and  that  the 
mode  of  ascertaining  the  amount  of  such  loss,  is  to  inquire  upon 
what  terms  the  plaintiffs  could  have  gone  into  the  market  and  ob- 
tained a  similar  contract  on  that  day.  That,  it  is  said,  is  the  true 
and  the  only  measure  of  damages  in  such  a  case ;  and  hence  it  is  con- 
tended that  it  was  incumbent  on  the  plaintiffs  here  to  give  evidence 
of  loss  ascertained  in  that  manner,  by  showing  what  would  be  the 
difference  between  tl  e  contract  price  and  the  price  at  which  they 


ROPER   v.   JOHNSON.  341 

could  have  obtained  a  similar  contract  on  the  day  of  the  breach,  or 
that  they  were  unable  to  obtain  such  a  contract  at  all.  Now,  it  ap- 
pears to  me  that  the  plaintiffs  cannot  be  called  upon  to  give  evi- 
dence of  that  sort.  The  rale  laid  down  by  the  Court  of  Exchequer, 
in  Brown  v.  Muller  (supra),  is  to  be  applied  to  the  present  case  cy 
pres.  The  judges  there,  in  reality,  did  go  into  the  question  which 
arises  here ;  and  the  Lord  Chief  Baron,  and  Martin  and  Channell, 
BB.,  pronounced  opinions  which  are  distinctly  in  favor  of  the  plaint- 
iffs in  this  case.  Mr.  Herschell  is  undoubtedly  justified  in  saying 
that  those  judgments  are  to  a  certain  extent  obiter.  Still  they  come 
to  us  recommended  by  very  high  authority ;  and  I  am  disposed  to 
concur  in  them.  The  difficulty  which  presents  itself  here  is  intro- 
duced by  the  comparatively  recent  case  of  Hochster  v.  De  la  Tour 
(2  E.  &  B.  678  ;  22  L.  J.  Q.  B.  455),  the  first  case  which  decided 
that,  in  the  case  of  an  executory  contract,  the  refusal  of  one  party 
to  perform  the  contract  would  justify  the  other  in  at  once  treating 
such  refusal  as  a  breach,  and  suing  for  damages.  That  case  has  been 
distinctly  recognized  on  many  subsequent  occasions,  and  we  must 
now  assume  it  to  be  law.  It  has  undoubtedly  introduced  a  difficulty 
in  the  assessment  of  damages  in  similar  cases.  It  was  followed  in 
Frost  v.  Knight  (Law  Rep.  5  Ex.  322),  in  the  Court  of  Exchequer, 
and  the  Exchequer  Chamber  (Law  Rep.  7  Ex.  Ill)  also  professed  to 
act  upon  it.  It  was  not  necessary,  in  either  case,  to  decide  what  the 
damages  actually  were  in  moneys  numbered.  But  we  are  not  left 
without  some  light  upon  the  subject ;  for  Cockburn,  C.  J.,  lays  down 
the  rule  which  I  for  one  am  prepared  to  act  upon  here,  and  in  the 
same  terms  in  which  it  was  laid  down  by  the  three  judges  in  Brown 
v.  Muller  (supra),  viz.,  that  the  periods  of  time  at  which  the  differ- 
ence of  price  on  a  contract  of  this  kind  is  to  be  taken,  are  the  periods 
of  time  at  which  the  deliveries  would  have  taken  place  had  the  con- 
tract been  performed.  Cockburn,  C.  J.,  in  delivering  what  must  be 
assumed  to  be  the  judgment  of  the  whole  Court  of  Exchequer  Cham- 
ber in  Frost  v.  Knight  (Law  Rep.  7  Ex.  at  p.  112),  says  :  "  The  law 
with  reference  to  a  contract  to  be  performed  at  a  future  time,  where 
the  party  bound  to  performance  announces,  prior  to  the  time,  his  in- 
tention not  to  perform  it,  as  established  by  the  cases  of  Hochster  v. 
De  la  Tour  (supra)  and  The  Danube  and  Black  Sea  Company  v.  Zenos 
(13  C.  B.  K  S.  825 ;  31  L.  J.  C.  P.  284)  on  the  one  hand,  and  Avery 
v.  Bowden  (5  E.  &  B.  714 ;  26  L.  J.  Q.  B.  3),  Reid  v.  Hoskins  (6  E. 
&  B.  953  ;  26  L.  J.  Q.  B.  3),  and  Barrick  v.  Buba  (2  C.  B.  N.  S.  563  ; 
26  L.  J.  C.  P.  280),  on  the  other,  may  be  thus  stated.  The  promisee, 
if  he  pleases,  may  treat  the  notice  of  intention  as  inoperative,  and 


312  SEVERAL   DELIVERIES. 

await  the  time  when  the  contract  is  to  be  executed,  and  then  hold 
the  other  party  responsible  for  all  the  consequences  of  non-perform- 
ance :  but,  in  that  case,  he  keeps  the  contract  alive  for  the  benefit  of 
the  other  party  as  well  as  his  own  ;  he  remains  subject  to  all  his  own 
obligations  and  liabilities  under  it,  and  enables  the  other  party  not 
only  to  complete  the  contract,  if  so  advised,  notwithstanding  his  pre- 
vious repudiation  of  it,  but  also  to  take  advantage  of  any  supervening 
circumstance  which  would  justify  him  in  declining  to  complete  it. 
On  the  other  hand,  the  promisee  may,  if  he  thinks  proper,  treat  the 
repudiation  of  the  other  party  as  a  wrongful  putting  an  end  to  the 
contract,  and  may  at  once  bring  his  action  as  on  a  breach  of  it ;  and 
in  such  action  he  will  be  entitled  to  such  damages  as  would  have 
arisen  from  the  non-performance  of  the  contract  at  the  appointed 
time."  And  he  adds  this  qualification :  "  Subject,  however,  to 
abatement  in  respect  of  any  circumstances  which  may  have  afforded 
him  the  means  of  mitigating  his  loss."  That  seems  to  me  to  get  rid 
of  the  argument  urged  on  the  part  of  the  defendant,  viz.,  that  the 
true  and  only  measure  of  damages  in  such  a  case  as  this  is,  the  loss 
which  the  plaintiffs  have  sustained  in  consequence  of  the  defendant's 
failure  to  perforin  the  contract ;  that  the  mode  of  estimating  that 
loss  is  by  ascertaining  the  difference  between  the  contract  price  and 
the  price  at  which  the  plaintiffs  might  have  obtained  a  new  contract 
on  the  day  of  the  admitted  breach ;  and  that  it  was  for  the  plaintiffs 
to  show  what  that  difference  was,  either  by  having  entered  into  such 
a  contract,  or  by  proof  of  their  inability  to  obtain  one.  It  seems  to 
me  that,  when  the  plaintiffs  have  shown  that  there  has  been  a  dis- 
tinct breach  of  the  contract  on  the  part  of  the  defendant,  and  have 
further  shown  that  at  the  periods  at  which  the  coal  should  have  been 
delivered,  they  could  only  have  obtained  them  at  an  advanced  price, 
they  were  entitled  to  the  difference  between  that  advanced  price  and 
the  contract  price,  unless  the  defendant  gave  evidence  that  another 
similar  contract  might  have  been  obtained  on  more  mitigated  terms. 
For  instance,  if  there  had  been  a  fall  in  the  market,  or  any  other 
circumstance  calculated  to  diminish  the  loss,  it  would  be  for  the  de- 
fendant to  show  it.  This  is  the  best  conclusion  I  have  been  able  to 
arrive  at ;  and  it  has  the  support  of  the  opinions  of  three  judges  of 
the  Exchequer  in  Brown  v.  Muller  (supra).  I  think  it  is  the  better 
and  the  safer  rule  ;  though  I  am  free  to  confess  that  the  matter  is 
by  no  means  divested  of  difficulty — a  difficulty  occasioned  by  the 
novel  doctrine  introduced  by  the  case  of  Hochster  v.  De  la  Tour 
(supra).  But  it  seems  to  me  that  it  is  a  rule  which  is  more  likely  to 
avoid  those  difficulties  than  the  other  rule  which  has  been  suggested 
by  Mr.  Herschell. 


ROPER   v.   JOHNSON.  343 

The  rule  will,  therefore,  be  made  absolute  to  reduce  the  damages 
to  400£,  the  sum  agreed  upon  between  the  parties. 

Bkett,  J. — This  is  an  action  brought  upon  a  contract  for  the  pur- 
chase and  sale  of  marketable  goods,  whereby  the  defendant  under- 
took to  deliver  them  in  certain  quantities  at  certain  specified  times ; 
and  the  action  is  brought  for  the  non-performance  of  that  contract. 
Now,  in  ordinary  cases,  the  contract  is  to  deliver  the  goods  on  a 
specified  day,  and  there  is  no  breach  until  that  day  has  passed.  In 
the  case  of  marketable  goods,  the  rule  as  to  damages  for  breach  of 
the  contract  to  deliver  is,  the  difference  between  the  contract  price 
and  the  market  price  on  the  day  of  breach.  That  is  perfectly  right 
when  the  day  for  performance  and  the  day  of  breach  are  the  same. 
Another  form  of  contract  is,  as  in  Brown  v.  Muller  (Law  Bep.  7  Ex. 
319),  to  deliver  goods  in  certain  quantities  on  different  days.  The 
effect  of  the  judgment  in  that  case  is  that,  the  contract  being  wholly 
unperformed,  there  is  a  breach — a  partial  breach — on  each  of  the 
specified  days  ;  such  breaches  occurring  on  the  same  days  as  the  days 
appointed  for  the  performance  of  the  several  portions  of  the  con- 
tract. But  the  case  of  Hochster  v.  De  la  Tour  (2  E.  &  B.  678 ;  22 
L.  J.  Q.  B.  455)  introduced  this  qualification,  that,  where  one  party, 
before  the  day  for  the  performance  of  the  contract  has  arrived,  de- 
clares that  he  will  not  perform  it,  the  other  may  treat  that  as  a 
breach.  That  complication  has  arisen  here  :  the  contract  being  for 
the  delivery  of  the  goods  on  future  specified  days,  the  defendant  has 
before  the  time  apj)ointed  for  the  last  delivery  declared  that  he  will 
not  perform  the  contract,  and  the  plaintiffs  have  elected  to  treat  that 
as  a  breach  and  to  bring  their  action. 

Now,  to  entitle  a  plaintiff  to  recover  damages  in  an  action  upon 
a  contract,  he  must  show  a  breach  and  that  he  has  sustained  damage 
by  reason  of  that  breach.  These  two  are  quite  distinct.  All  that 
Hochster  v.  De  la  Tour  (2  E.  &  B.  678 ;  22  L.  J.  Q.  B.  455)  decided 
was  this,  that,  if  before  the  day  stipulated  for  performance,  the  de- 
fendant declares  that  he  will  not  perform  it,  the  plaintiff  may  treat 
that  declaration  as  a  breach  of  the  contract,  and  sue  for  it.  Now 
comes  the  question  whether  in  such  a  case  as  this  there  is  to  be  a  dif- 
ferent rule  as  to  proof  of  the  amount  of  damage  which  the  plaintiff 
has  suffered.  The  general  rule  as  to  damages  for  the  breach  of  a 
contract  is,  that  the  plaintiff  is  to  be  compensated  for  the  difference 
of  his  position  from  what  it  would  have  been  if  the  contract  had 
been  performed.  In  the  ordinary  case  of  a  contract  to  deliver  mar- 
ketable goods  on  a  given  day,  the  measure  of  damages  would  be  the 
difference  between  the  contract  price  and  the  market  price  on  that 


344  SEVERAL   DELIVERIES. 

day.  Now,  although  the  plaintiff  may  treat  the  refusal  of  the  de- 
fendant to  accept  or  to  deliver  the  goods  before  the  day  for  perform- 
ance as  a  breach,  it  by  no  means  follows  that  the  damages  are  to  be 
the  difference  between  the  contract  price  and  the  market  price  on 
the  day  of  the  breach.  It  appears  to  me  that  what  is  laid  down  by 
Cockbukn,  C.  J.,  in  Frost  v.  Knight,  in  the  Exchequer  Chamber 
(Law  Rep.  7  Ex.  Ill),  involves  the  very  distinction  which  I  am  en- 
deavoring to  lay  down,  viz.,  that  the  election  to  take  advantage  of 
the  repudiation  of  the  contract,  goes  only  to  the  question  of  breach, 
and  not  to  the  question  of  damages  ;  and  that,  when  you  come  to  es- 
timate the  damages,  it  must  be  by  the  difference  between  the  con- 
tract price  and  the  market  price  at  the  day  or  days  appointed  for 
performance,  and  not  at  the  time  of  breach.  Now,  how  does  the 
Chief  Justice  deal  with  the  matter  ?  He  deals  first  with  the  case  of 
an  action  brought  after  the  day  for  performance.  He  says  :  "  The 
promisee,  if  he  pleases,  may  treat  the  notice  of  intention  as  inopera- 
tive, and  await  the  time  when  the  contract  is  to  be  executed,  and 
then  hold  the  other  party  responsible  for  all  the  consequences  of  non- 
performance ;  but,  in  that  case,  he  keeps  the  contract  alive  for  the 
benefit  of  the  other  party  as  well  as  his  own  ;  he  remains  subject  to 
all  his  own  obligations  and  liabilities  under  it,  and  enables  the  other 
party  not  only  to  complete  the  contract,  if  so  advised,  notwithstand- 
ing his  previous  repudiation  of  it,  but  also  to  take  advantage  of  any 
supervening  circumstance  which  would  justify  him  in  declining  to 
complete  it."  He  then  treats  of  the  other  case  :  "  On  the  other 
hand,  the  promisee  may,  if  he  thinks  proper,  treat  the  repudiation  of 
the  other  party  as  a  wrongful  putting  an  end  to  the  contract,  and 
may  at  once  bring  his  action  as  on  a  breach  of  it ;  and  in  such  action 
he  will  be  entitled  to  such  damages  as  would  have  arisen  from  the 
non-performance  of  the  contract  at  the  appointed  time,"  that  is,  from 
non-performance  of  the  contract  at  the  time  or  times  appointed  for 
its  performance.  That  clearly  negatives  Mr.  Herschell's  argument, 
and  gives  the  rule  for  the  assessment  of  damages  in  the  way  I  have 
stated,  viz.,  that  they  must  be  such  as  the  plaintiffs  would  have  sus- 
tained at  the  day  appointed  for  performance  of  the  contract.  Then 
he  goes  on  and  shows  the  real  distinction  between  the  cases  he  has 
put :  "  Subject,  however,  to  abatement  in  respect  of  any  circum- 
stances which  may  have  afforded  him  the  means  of  mitigating  his 
loss."  He  says  further  :  "  The  contract  having  been  thus  broken  by 
the  promisor,  and  treated  as  broken  by  the  promisee,  performance  at 
the  appointed  time  becomes  excluded,  and  the  breach  by  reason  of 
the  future  non-performance  becomes  virtually  involved  in  the  action 


ROPER   v.   JOHNSON.  345 

as  one  of  the  consequences  of  the  repudiation  of  the  contract  ;  and 
the  eventual  non-performance  may  therefore,  by  anticipation,  be 
treated  as  a  cause  of  action,  and  damages  be  assessed  and  recovered 
in  respect  of  it,  though  the  time  for  performance  may  yet  be  re- 
mote. It  is  obvious  that  such  a  course  must  lead  to  the  convenience 
of  both  parties ;  and,  though  we  should  be  unwilling  to  found  our 
opinion  on  grounds  of  convenience  alone,  yet  the  latter  tend  strongly 
to  support  the  view  that  such  an  action  ought  to  be  admitted  and 
upheld.  By  acting  on  such  a  notice  of  the  intention  of  the  promisor, 
and  taking  timely  measures,  the  promisee  may  in  many  cases  avert, 
or  at  all  events  materially  lessen,  the  injurious  effects  which  would 
otherwise  flow  from  the  non-fulfillment  of  the  contract ;  and,  in  as- 
sessing the  damages  for  breach  of  performance,  a  jury  will  of  course 
take  into  account  whatever  the  plaintiff  has  done,  or  has  had  the 
means  of  doing,  and,  as  a  prudent  man,  ought  in  reason  to  have  done, 
whereby  his  loss  has  been  or  would  have  been  diminished."  He 
uses  the  very  term  I  used  in  the  course  of  the  argument,  and  which 
Mr.  Herschell  objected  to,  viz.,  "  ought  to  have  done."  It  seems  to 
me  to  follow,  from  that  ruling,  that  the  plaintiffs  here  did  all  they 
were  bound  to  do  when  they  proved  what  was  the  difference  be- 
tween the  contract  price  and  the  market  price  at  the  several  days 
specified  for  the  performance  of  the  contract,  and  that  prima  facie 
that  is  the  proper  measure  of  damages  ;  leaving  it  to  the  defendant 
to  show  circumstances  which  would  entitle  him  to  a  mitigation.  No 
such  circumstances  appeared  here  :  there  was  nothing  to  show  that 
the  plaintiffs  ought  to  have  or  could  have  gone  into  the  market — a 
rising  market — and  obtained  a  similar  contract.  But  I  cannot  help 
thinking  that  the  Chief  Justice's  judgment  in  the  case  last  referred 
to  goes  further,  and  says  in  effect  that  the  plaintiffs  were  not  bound 
to  attempt  to  get  a  new  contract.  It  was  upon  precisely  the  same 
argument  that  the  Chief  Baron  in  Brown  v.  Muller  {supra)  decided 
against  Mr.  Herschell  that  the  plaintiff  there,  as  a  reasonable  man, 
was  not  bound  to  make  a  forward  contract.  Baron  Martin  held  the 
same,  though  apparently  with  some  reluctance :  but  no  doubt  is  ex- 
pressed in  the  judgment  of  Baron  Channell.  If  we  had  been  alto- 
gether without  authority,  I  should  have  come  to  the  same  conclusion. 
But  I  think  we  are  bound  by  the  authority  of  Frost  v.  Knight  (su- 
pra), and  Brown  v.  Muller  {supra). 

Grove,  J. — I  have  come  to  the  same  conclusion,  notwithstanding 
that  I  have  entertained  considerable  doubt  during  the  argument, 
particularly  upon  the  first  proposition,  as  to  which  I  desire  not  to 
pronounce  any  opinion.      Upon  the  second  point  I  entirely  agree 


3-46  SEVERAL   DELIVERIES. 

with  the  rest  of  the  court,  viz.,  whether  there  was  any  evidence  upon 
which  we  could  act.  As  to  the  first  question  I  probably  should  have 
felt  myself  bound  by  the  opinions  expressed  by  the  judges  in  Brown 
v.  Muller  (Law  Eep.  7  Ex.  319),  though  strictly  obiter  ;  for  the  ac- 
tion there  was  not  brought  until  after  the  expiration  of  the  last 
period  stipulated  for  the  delivery  of  the  iron,  while  here,  there  was 
evidence  that  the  plaintiffs  had  accepted  the  defendant's  renuncia- 
tion of  the  contract,  and  had  assented  to  its  being  put  an  end  to  at 
the  latest  on  the  3d  of  July.  But,  taking  it  upon  Mr.  Herschell's 
own  view,  his  second  proposition  clearly  was  not  made  out.  There 
was  an  admitted  breach,  and  the  question  was,  at  what  extra  cost  to 
themselves  could  the  plaintiffs  then  have  placed  themselves  in  the 
same  position  they  would  have  been  in  if  the  defendant  had  per- 
formed his  contract  ?  Was  there  any  evidence  upon  which  the  court 
could  rely  in  support  of  the  proposition  that  the  plaintiffs  could,  at 
the  time  of  the  admitted  breach,  have  gone  into  the  market  and 
made  a  similar  contract  ?  I  cannot  gather  from  the  notes  of  the 
learned  judge  who  tried  the  cause,  that  there  was  any  evidence  upon 
which  the  jury  could  have  come  to  such  a  conclusion.  I  agree  that 
the  market  price,  though  commonly  used  as  a  test,  is  not  the  only 
one.  If  in  this  case  the  defendant  could  have  shown  that  the  plaint- 
iffs might  have  gone  into  the  market  on  the  day  of  breach  and  made 
a  forward  contract  at  the  then  market  price,  and  that  they  had  not 
attempted  to  avail  themselves  of  the  opportunity,  the  jury  might 
undoubtedly  have  taken  that  into  consideration  in  reduction  of  the 
plaintiffs'  loss  ;  and  we  might  have  done  so  too.  The  case  would 
then  have  been  within  the  principle  of  Hochster  v.  De  la  Tour  (2  E. 
&  B.  678  ;  22  L.  J.  Q.  B.  455).  Lord  Campbell  there  says  (2  E.  & 
B.  at  p.  690) :  "  It  is  much  more  rational,  and  more  for  the  benefit 
of  both  parties,  that,  after  the  renunciation  of  the  agreement  by  the 
defendant,  the  plaintiff  should  be  at  liberty  to  consider  himself  ab- 
solved from  any  future  performance  of  it,  retaining  his  right  to  sue 
for  any  damage  he  has  suffered  from  the  breach  of  it.  Instead  of 
remaining  idle,  and  laying  out  money  in  preparations  which  must  be 
useless,  he  is  at  liberty  to  seek  service  under  another  employer, 
which  would  go  in  mitigation  of  the  damages  to  which  he  would 
otherwise  be  entitled  for  a  breach  of  the  contract."  And  further 
on  he  says  (2  E.  &  B.  at  p.  691) :  "  An  argument  against  the  action 
before  the  1st  of  June  (the  day  on  which  the  employment  of  the 
plaintiff  as  courier  was  to  commence)  is  urged  from  the  difficulty  of 
calculating  the  damages  ;  but  this  argument  is  equally  strong  against 
.an  action  before  the  1st  of  September,  when  the  three  months  would 


McHOSE   v.   FULMER.  3-i7 

expire.  In  either  case,  the  jury,  in  assessing  the  damages,  -would  be 
justified  in  looking  to  all  that  had  happened,  or  was  likely  to  hap- 
pen, to  increase  or  mitigate  the  loss  of  the  plaintiff  down  to  the  day 
of  trial."  Now,  if  there  had  been  any  materials  here  to  show  that, 
at  the  time  of  the  breach,  the  plaintiffs  could,  without  extraordinary 
trouble,  have  entered  into  a  forward  contract  at  the  then  market 
price,  the  jury  might  have  taken  them  into  consideration  in  mitiga- 
tion of  the  damages.  But  there  was  no  such  evidence  here  ;  and  we 
cannot  act  upon  any  conjecture  of  our  own;  we  can  only  deal  with 
the  evidence  as  it  stood  before  the  jury.  There  is  a  different  mode 
of  dealing  in  each  particular  trade  :  but,  upon  a  rule  to  reduce  the 
damages,  we  can  only  take  notice  of  the  ordinary  incidents  of  a  con- 
tract. The  expression  "  mitigation,"  used  in  the  judgment  of  Cock- 
burn,  C.  J.,  in  Frost  v.  Knight  (Law  Eep.  7  Ex.  Ill),  rather  shows 
that  the  onus  of  proof  lies  on  the  defendant.  The  plaintiffs  having 
made  out  a  prima  facie  case  of  damages,  actual  and  prospective,  to 
a  given  amount,  the  defendant  should  have  given  evidence  to  show 
how  and  to  what  extent  that  claim  ought  to  be  mitigated.  Xo  such 
evidence  was  attempted  to  be  given.  It  is  entirely  upon  the  absence 
of  that  evidence  that  I  rest  my  judgment.  The  other  point  is  one 
deserving  of  serious  consideration.  The  ojnnions  of  Kelly,  C.  B., 
and  Channell,  B.,  upon  the  point,  in  Brown  v.  Muller  (supra),  are 
clear  in  favor  of  the  plaintiffs  ;  and  Marten,  B.,  did  not  dissent, 
though  he  seems  to  have  assented  with  some  reluctance. 

Keating,  J. — The  result  will  be  that  the  rule  will  be  made 
absolute  to  reduce  the  damages  to  400Z.,  but  discharged  as  to  the 
rest ;  and  each  party,  we  think,  should  bear  his  own  costs  of  the 
rule. 

Bule  absolute. 


SUPREME    COURT,    PENNSYLVANIA. 

[1873.]  McHose  v.  Fulmer  (73  Penn.  St.  3G5). 

When  a  vendor  fails  to  comply  with  his  contract,  the  general  rule  for  the  measure  of 
damages  is  the  difference  between  the  contract  and  market  price  at  the  time  of  the 
breach. 

When  the  article  cannot  be  obtained  in  the  market,  the  measure  is  the  actual  loss  the 
vendee  sustains. 

McHose,  a  manufacturer,  contracted  for  iron  from  Fulmer,  who  failed  to  comply,  and  Mc- 
Hose could  not  supply  himself  in  the  market.     Held,  that  the  measure  of  damage  was 


348  SEVERAL  DELIVERIES. 

the  loss  he  sustained  by  having  to  use  an  inferior  article  in  his  manufacture,  or  in  not 
receiving  the  advance  on  the  contract  price  upon  contracts  he  was  to  fill  relying  on 
Fulmer's  contract. 
Bank  of  Montgomery  v.  Reese,  2  Casey,  143,  recognized. 

March  18th,  1873.  Before  Bead,  C.  J.,  Agnew,  Sharswood  and 
Mebcub,  J  J.     Williams,  J.,  at  Nisi  Prius. 

Error  to  the  Court  of  Common  Pleas  of  Lehigh  county :  Of 
January  Term,  1873,  No.  165. 

This  was  an  action  of  assumpsit,  brought  January  25th,  1872,  by 
Henry  Fulmer  and  Peter  Uhler,  trading  as  the  Easton  Iron  Manu- 
facturing Company,  against  Samuel  McJIose  and  others,  trading  as 
Samuel  McHose  &  Co. 

The  cause  of  action  was  the  following  note  : 
"  $1,237  25.  Allentown,  Oct.  27th,  1871. 

Sixty  days  after  date  we  promise  to  pay  to  the  order  of  Easton 
Iron  Manufacturing  Co.,  twelve  hundred  and  thirty-seven  dollars 
and  twenty-five  cents,  at  First  National  Bank  of  Allentown,  Penn., 
without  defalcation,  for  value  received. 

Samuel  McHose  &  Co." 

The  defendants  filed  an  affidavit  of  defense,  to  wit : 

The  plaintiffs  and  defendants  entered  into  a  contract  about  the 
20th  of  October,  1871,  by  which  the  plaintiffs  agreed  to  furnish  de- 
fendants with  100  tons  of  pig  iron,  to  wit :  50  tons  at  $30  per  ton, 
and  50  tons  at  $32  50,  to  be  furnished  in  the  months  of  October  and 
November,  1871.  In  October,  plaintiffs,  in  pursuance  of  said  con- 
tract, did  furnish  to  defendants  40  tons  of  pig  iron,  to  wit :  30  tons 
at  $30  per  ton,  and  10  tons  at  $32  50,  making  total  of  $1,225,  the 
amount  for  which  the  note  in  this  case  was  given,  with  interest  added. 

The  residue  of  the  iron,  according  to  said  contract,  was  to  be  fur- 
nished in  the  month  of  November,  and  the  defendants  being  en- 
gaged in  the  manufacture  of  iron,  relying  upon  the  undertaking  of 
plaintiffs,  made  no  other  engagement  for  iron.  In  the  month  of 
November  the  defendants  gave  notice  to  the  plaintiffs  that  they  were 
in  need  of  said  iron,  to  wit,  the  60  tons  which  the  plaintiffs  neglected 
and  refused  to  furnish,  although  often  requested  so  to  do,  in  the 
months  of  November  and  December.  The  contract  for  payment 
was  notes  at  60  days. 

The  defendants  therefore  say,  that  by  the  refusal  of  the  plaintiffs 
to  furnish  said  iron  as  per  contract,  they  (the  defendants)  have  suf- 
fered damage  to  an  amount  exceeding  the  whole  amount  of  the  note 
on  which  suit  is  brought. 

The  nature  of  the  damage  sustained  by  defendants  is  as  follows  : 


McHOSE   v.  FITLMER.  349 

The  defendants  are  the  owners  of  the  Hope  Eolling  Mill,  situated 
in  the  city  of  Allentown,  and  are  carrying  on  the  business  of  making- 
merchant  bar  iron,  and  employ  about  sixty  hands,  and  had  heavy 
contracts  for  iron  to  be  furnished  in  November  and  December.  By 
the  neglect  and  refusal  of  plaintiffs  to  furnish  said  iron,  defendants 
were  obliged  to  get  an  inferior  quality  of  iron  than  that  which 
plaintiffs  were  to  furnish,  in  order  to  carry  on  the  business  of  said 
mill,  and  being  inferior  they  lost  the  contract  with  the  parties  with 
whom  they  had  contracted  for  the  sale  and  delivery  of  iron,  and  sus- 
tained other  serious  damage  and  loss  by  the  breach  of  said  contract 
on  the  part  of  plaintiffs. 

They  afterwards  made  a  supplemental  affidavit  of  defense,  "  that 
by  reason  of  the  plaintiffs  neglecting  and  refusing  to  comply  with 
the  contract  set  forth  in  said  affidavit  of  defense,  the  defendants 
were  unable  to  get  the  same  quality  of  iron,  and  iron  had  advanced 
in  price  one  dollar  per  ton,  which  would  make  $60  damages  in  price 
of  iron. 

"  The  defendants  further  say,  that  the  loss  of  contracts  and  in 
the  sale  of  manufactured  iron  greatly  exceed  the  amount  of  the  note 
on  which  suit  is  brought.  That  defendants  not  being  able  to  make 
good  iron  for  the  parties  with  whom  they  had  contracts,  they  sus- 
tained losses  as  follows  :  With  Brinton  &  Johnson,  of  Philadelphia, 
they  sustained  losses  in  iron  returned,  $639  47,  which  amount  is  com- 
posed of  labor  and  freight  in  sending  and  returning  said  iron,  and 
the  damages  for  the  loss  of  the  contract  with  said  Brinton  &  John- 
son will  exceed  the  sum  of  $600.  Making  a  total  of  more  than  the 
amount  of  said  note.  That  they  have  suffered  other  damages  by  rea- 
son of  the  failure  of  said  plaintiffs  to  comply  with  their  contract." 

On  the  17th  of  July,  1872,  the  court  (Longaker,  P.  J.)  entered 
judgment  for  the  plaintiffs  for  $1,218  45,  the  amount  of  the  note 
and  interest,  "  less  $60  claimed  as  the  appreciation  of  the  iron." 

The  defendants  removed  the  record  to  the  Supreme  Court,  and 
assigned  the  entering  of  the  judgment  for  error. 

The  opinion  of  the  court  was  delivered  March  24th,  IS 73,  by 

Sharswood,  J. — When  a  vendor  fails  to  comply  with  his  contract, 
the  general  rule  for  the  measure  of  damages  undoubtedly  is,  the  dif- 
ference between  the  contract  and  the  market  price  of  the  article  at 
the  time  of  the  breach.  This  is  for  the  evident  reason  that  the  ven- 
dee can  go  into  the  market  and  obtain  the  article  contracted  for  at 
that  price.  But  when  the  circumstances  of  the  case  are  such  that 
the  vendee  cannot  thus  supply  himself  the  rule  does  not  apply,  for 
the  reason  of  it  ceases  (Bank  of  Montgomery  v.  Reese,  2  Casey,  143). 


350  SEVERAL  DELIVERIES. 

"  It  is  manifest,"  says  Mr.  Chief  Justice  Lewis,  "  that  this  (the  ordi- 
nary measure)  would  not  remunerate  him  when  the  article  could  not 
be  obtained  elsewhere."  If  an  article  of  the  same  quality  cannot  be 
procured  in  the  market,  its  market  price  cannot  be  ascertained,  and 
we  are  without  the  necessary  data  for  the  application  of  the  general 
rule.  This  is  a  contingency  which  must  be  considered  to  have  been 
within  the  contemplation  of  the  parties,  for  they  must  be  presumed 
to  know  whether  such  articles  are  of  limited  production  or  not.  In 
such  a  case  the  true  measure  is  the  actual  loss  which  the  vendee  sus- 
tains in  his  own  manufacture,  by  having  to  use  an  inferior  article  or 
not  receiving  the  advance  on  his  contract  price  upon  any  contracts 
which  he  had  himself  made  in  reliance  upon  the  fulfillment  of  the 
contract  by  the  vendor.  We  do  not  mean  to  say,  that  if  he  under- 
takes to  fill  his  own  contracts  with  an  inferior  article,  and  in  conse- 
quence such  article  is  returned  on  his  hands,  he  can  recover  of  his 
vendor,  besides  the  loss  sustained  on  his  contracts,  all  the  extraordi- 
nary loss  incurred  by  his  attempting  what  was  clearly  an  unwarrant- 
able experiment.  His  legitimate  loss  is  the  difference  between  the 
contract  price  he  was  to  pay  to  his  vendor  and  the  price  he  was  to 
receive.  This  is  a  loss  which  springs  directly  from  the  non-fulfill- 
ment of  the  contract.  The  affidavits  of  defense  are  not  as  full  and 
precise  upon  this  point  as  they  might  and  ought  to  have  been,  but 
they  state  that  the  defendants  below  had  entered  into  such  contracts, 
and  that  they  were  unable  to  get  the  same  quality  of  iron  which  the 
plaintiff  had  agreed  to  deliver,  and  this,  we  think,  was  enough  to 
have  carried  the  case  to  a  jury. 

Judgment  reversed,  and  &  procedendo  awarded. 


Several  Deliveries  of  Articles  to  be  Manufactured. 


COURT  OF  QUEENS  BENCH. 

[1874]    Elblnger  Actien-Gesellschafft  v.  Armstrong  (L, 

K.  9  Q.  B.  473). 

The  defendant,  in  January,  1872,  agreed  to  furnish  plaintiffs  with  666  sets  of  wheels  and 
axles  according  to  tracings,  100  of  which  were  to  be  delivered  at  stated  intervals  in 
the  months  of  February,  March  and  April  free  on  board  at  Hull ;  guarantee  three 
years  and  three  months  from  time  of  shipments.  The  plaintiffs  were  under  a  contract 
with  a  Russian  railway  company  to  deliver  them  1,000  wagons,  500  on  the  1st  of 


ELBINGER  ACTIEN-GESELLSCHAFFT   v.   ARMSTRONG.  351 

May,  1872,  and  500  on  the  31st  of  May,  1873;  and  they  were  bound  to  pay  two 
roubles  per  wagon  for  each  day's  delay  in  delivery.  In  the  course  of  the  negotia- 
tions between  plaintiffs  and  defendant,  defendant  was  informed  of  this  contract,  but 
neither  the  precise  day  for  the  delivery  nor  the  amount  of  the  penalties  was  men- 
tioned. Delay  occurred  in  the  delivery  of  the  100  sets  of  wheels  ;  and  the  plaintiffs, 
in  consequence,  had  to  pay  certain  penalties,  but  the  Russian  company  consented  to 
take  one  rouble  a  day,  amounting  in  the  whole  to  1001. 

The  plaintiffs,  having  brought  an  action  against  the  defendant  for  the  delay,  sought  to 
recover  as  damages  the  100/. 

Held,  that  the  plaintiffs  were  not  entitled  to  damages,  as  matter  of  right,  to  the  amount 
of  penalties;  but  that  the  jury  might  reasonably  have  assessed  the  damages  at 
that  amount. 

Declaration  setting  out  an  agreement  (of  which  the  material  parts 
are  stated  in  the  judgment  of  the  court)  by  which  defendant  agreed 
to  supply  666  sets  of  wheels  and  axles  according  to  tracings,  100 
pairs  to  be  delivered  at  certain  intervals  in  the  months  of  February, 
March  and  April,  1872,  free  on  board  at  Hull.  Guarantee  three 
years  and  three  months  from  time  of  shipments  from  Hull.  That 
the  defendant  delayed  delivery  in  the  first  100  sets,  whereby  the 
plaintiffs  suffered  damage.* 

Plea,  inter  alia,  traversing  the  agreement  as  alleged. 

At  the  trial  before  Lush,  J.,  at  the  sittings  in  London  after 
Hilary  Term,  1873,  a  verdict  passed  for  the  plaintiff's  for  100Z.  13s., 
with  leave  to  the  defendant  to  move  to  reduce"  the  verdict  to  nom- 
inal damages. 

The  facts  and  circumstances  of  the  trial  are  fully  given  in  the 
judgment  of  the  court. 

A  rule  having  been  obtained  accordingly, 

May  7,  8.     H.  Williams  Q.  C,  and  Cohen,  showed  cause. 

Sir  H.  James,  Q.  C,  and   Wadchj,  Q.  C,  in  support  of  the  rule. 

The  arguments  sufficiently  appear  in  the  judgment. 

The  following  authorities,  in  addition  to  those  noticed  in  the 
judgment,  were  cited :  Hadley  v.  Baxendale,  9  Ex.  341 ;  23  L.  J. 
Ex.  179 ;  British  Columbia  Sawmill  Co.  v.  Nettleship,  Law  Rep.  3 
C.  P.  499  ;  Smeed  v.  Foord,  1  E.  &  E.  602 ;  28  L.  J.  Q.  B.  178 ; 
Ogle  v.  Earl  Yane,  Law  Rep.  2  Q.  B.  275 ;  Prior  v.  Wilson,  8  W.  R. 
260 ;  Cory  v.  Thames  Iron  Works  Co.  Law  Rep.  3  Q.  B.  181  ;  Home 
v.  Midland  Ry.  Co.  Law  Rep.  8  C.  P.  131 ;  Sawdon  v.  Andrew,  30 
L.  T.  K  S.  23  ;  Tyers  v.  Rosedale  Iron  Co.  Law  Rep.  8  Ex.  305 ; 
Gee  v.  Lancashire  &  Yorkshire  Ry.  Co.  6  H.  &  X.  211 ;  30  L.  J. 
Ex.  11 ;   Borries  v.  Hutchinson,   18  C.  B.  K.  S.  445 ;    34  L.  J.  C. 

*  The  form  in  which  the  damages  were  laid  is  given  in  the  judgment. 


352  SEVERAL   DELIVERIES. 

P.  169 ;  Everard  v.  Hopkins,  2  Buls.  332 ;  Benjamin  on  Sale,  p. 
727  (2d  ed.) 

Cur.  adv.  vult. 

July  6.  The  judgment  of  the  court  (Cockburn,  Ch.  J.,  Black- 
burn, Lush  and  Quain,  JJ.),  was  delivered  by 

Blackburn,  J. — This  was  an  action  by  a  foreign  corporation  on 
a  contract  by  which  the  defendant,  on  the  20th  of  January,  IS 72, 
agreed  to  furnish  the  plaintiffs'  agents  with  6Q6  sets  of  wheels  and 
axles,  according  to  tracings,  at  the  following  prices  and  times  of  de- 
livery, viz.,  100  sets  of  tracing  No.  1,  at  321.  per  set,  of  which  were 
to  be  delivered  in  that  year  in  Hull,  10  sets  up  to  the  15th  of  Feb- 
ruary, 10  sets  up  to  the  1st  of  March,  20  sets  up  to  the  15th  of 
March,  20  sets  up  to  the  1st  of  April,  and  40  sets  up  to  the  15th  of 
April.  The  contract  specified  the  prices  and  times  of  delivery  of 
the  remaining  566  sets,  on  which  nothing  turned,  and  proceeded  as 
follows :  "  All  the  foregoing  prices  are  understood  of  four  wheels 
and  two  axles  for  deliveries  free  on  board  in  Hull.  Payment  at 
buyer's  option,  either  in  three  months  approved  bills  at  par  or  less 
1^  discount  for  cash,  fourteen  days  after  date  of  bills  of  lading  and 
shipment  from  Hull.  Guarantee  three  years  and  three  months  from 
time  of  shipments  from  Hull,  as  customary." 

The  action  was  for  delay  in  delivering  the  first  100  sets,  and  in 
the  declaration  damages  were  claimed  in  the  following  terms : 
"  Whereby  the  plaintiffs  sustained  great  loss  by  being  deprived  of 
the  said  several  sets  for  a  long  time  after  the  said  several  agreed 
times,  and  by  being  prevented  from  carrying  out  and  fulfilling  cer- 
tain contracts  entered  into  by  the  plaintiffs  for  the  supply  of  the 
said  sets  by  the  plaintiffs  to  a  certain  railway  company  in  Russia, 
and  by  losing  great  profits  which  the  plaintiffs  would  have  made  by 
carrying  out  and  fulfilling  the  said  contracts,and  by  being  compelled 
to  pay  damages  for  not  fulfilling  the  said  contracts." 

Various  pleas  were  pleaded  and  issues  joined  on  them ;  but  at 
the  trial  before  my  brother  Lush,  J.,  it  was  admitted  that  none  of 
them  could  be  supported,  and  that  there  had  been  delay  beyond 
the  stipulated  times  in  delivering  the  100  sets ;  and  the  only  ques- 
tion was  as  to  damages. 

As  to  this  the  plaintiffs  called  a  witness,  who  gave  evidence  that 
the  plaintiffs  were  under  a  contract  with  a  Russian  railway  company 
to  deliver  to  them  1,000  covered  wagons,  500  on  the  1st  of  May, 
1S72,  and  500  on  the  31st  of  May,  1873;  and  by  the  contract  they 
were  bound  to  pay  to  the  Russian  company  two  roubles  per  wagon 
for  each  day's  delay  in  delivering  them. 


ELBINGER  ACTIEN-GESELLSCHAFFT  v.  ARMSTRONG.  353 

In  the  course  of  the  negotiations  between  the  plaintiffs  and  the 
defendant,  which  resulted  in  the  written  contract  of  the  20th  of  Jan- 
uary, the  defendant  was  informed  that  the  plaintiffs  wanted  the 
wheels  and  axles  to  complete  wagons  which  the  plaintiffs  were  bound 
to  deliver  to  a  Russian  company  under  penalties.  Neither  the 
amount  of  those  penalties  nor  the  precise  day  by  which  the  plaintiffs 
were  to  deliver  the  wagons  seems  to  have  been  mentioned ;  but,  ac- 
cording to  this  evidence,  the  defendant  was  expressly  told  that  he 
would  be  expected  to  deliver  the  sets  on  the  days  on  which  he  agreed 
to  deliver  them ;  and,  before  entering  into  the  contract,  he  said  he 
must  consult  his  foreman  as  to  the  state  of  his  works,  etc.,  to  see 
within  what  time  he  could  deliver  them. 

After  this,  the  written  contract  was  sent  and  accepted.  The 
plaintiffs  were  unable  to  procure  other  sets  of  wheels,  and  conse- 
quently each  day's  delay  in  furnishing  a  set  of  wheels  necessarily 
occasioned  a  day's  delay  in  furnishing  a  wagon. 

The  wagons  were  not  completed  in  time  for  the  Russian  com- 
pany, and  penalties  were  incurred ;  but  the  company  consented 
to  remit  half  the  penalties  due  to  them,  and  the  plaintiffs  only  paid 
one  rouble  a  day  for  delay. 

The  plaintiffs  claimed,  as  the  measure  of  their  damage,  one 
rouble  for  each  day's  delay  of  each  set  of  wheels  and  axles,  and  this, 
it  was  agreed,  would  amount  to  100Z.  13s. 

The  counsel  for  the  defendant  contended  that  there  was  no  evi- 
dence here  of  any  contract  to  pay  penalties,  and  that  the  damages  must 
be  nominal.  The  judge  was  not  asked  by  either  side  to  leave  any 
question  to  the  jury,  but  directed  the  verdict  to  be  entered  for  100/. 
13s.,  with  leave  to  the  defendant  to  move  to  reduce  the  damages  to 
a  nominal  sum ;  "  it  being  taken  that  the  jury  have  found  the  dam- 
ages under  my  direction  to  be  100/.  Ids." 

Sir  Henry  James,  in  Easter  Term,  1873,  obtained  a  rule  to  show 
cause  why  the  verdict  should  not  be  reduced  to  a  nominal  sum,  on 
the  ground  that,  on  the  evidence  given  at  the  trial,  the  plaintiffs 
were  not  entitled  to  recover  any  damages  in  relation  to  the  penalties 
paid  by  them  to  the  Russian  company. 

Owing  to  the  unavoidable  delay  occasioned  by  the  recent  trial  at 
bar,  cause  was  not  shown  till  last  term,  when  the  case  was  argued 
before  my  Lord  Chief  Justice,  my  brothers  Lush  and  Quain,  and  my- 
self, when  the  court  took  time  to  consider. 

We  have  no  difficulty  in  saying  that  the  defendant  is  not  entitled 
to  enter  a  verdict  for  nominal  damages. 

It  is,  no  doubt,  quite  settled  that,  on  a  contract  to  supply  goods 
23 


354  SEVERAL   DELIVERIES. 

of  a  particular  sort,  which  at  the  time  of  the  breach  can  be  obtained 
in  the  market,  the  measure  of  the  damages  is  the  difference  between 
the  contract  price  and  the  market  price  at  the  time  of  the  breach. 

Where,  from  the  nature  of  the  article,  there  is  no  market  in 
which  it  can  be  obtained,  this  rule  is  not  applicable ;  but  it  would  be 
very  unjust  if,  in  such  cases,  the  damages  must  be  nominal ;  and 
there  are  several  decisions  showing  that  such  is  not  the  law.  In 
Bridge  v.  Wain  (1  Stark.  504),  where  the  contract  was  to  supply 
scarlet  cuttings  in  China,  and  the  articles  supplied  were  not  scarlet 
cuttings,  Lord  Ellenbokough  ruled  that  the  plaintiffs  were  entitled  to 
the  value  of  scarlet  cuttings  in  China.  In  Borries  v.  Hutchinson 
(18  C.  B.  K  S.  445,  465  ;  34  L.  J.  C.  P.  169),  the  action  was  to 
recover  damages  for  delay  in  delivering  caustic  soda,  which  it  was 
admitted  was  an  article  which  is  not  kept  in  stock,  so  as  to  be 
capable  of  being  at  any  time  bought  in  the  market,  and  consequently 
there  was  no  ascertainable  market  price.  Willes,  J.,  in  that  case, 
says  :  "  In  ordinary  cases,  where  the  article  is  one  which  can  be 
bought  in  the  market,  the  proper  measure  of  damages  for  a  breach 
of  contract  to  deliver  is  the  difference  between  the  contract  price 

and  the  market  price  on  the  day  of  the  breach There  was  no 

market  price  to  which  resort  could  be  had  as  to  a  test  of  damage. 
We  must  therefore  ascertain  what  was  the  value  of  the  article  con- 
tracted for  at  the  time  when  it  ought  to  have  been  and  at  the  time 
when  it  actually  was  delivered." 

In  the  case  now  at  bar,  without  traveling  out  of  the  written  con- 
tract, it  is  obvious,  from  its  terms,  that  the  sets  of  wheels  and  axle- 
trees,  being  made  according  to  tracings,  could  not  be  obtained  in  any 
market,  but  that,  if  they  were  not  delivered  according  to  the  con- 
tract, the  plaintiffs  must  wait  till  they  could  get  them  made  else- 
where. And,  from  the  stipulation  at  the  conclusion  of  the  con- 
tract, that  there  was  to  be  a  guarantee  for  three  years  and  three 
months  from  time  of  delivery,  it  is  equally  obvious  that  both  parties 
contemplated  that  the  wheels  and  axles  were  to  be  put  into  imme- 
diate use.  Under  such  circumstances,  the  natural  and  almost  inevit- 
able consequence  of  a  delay  in  delivering  a  set  of  wheels  would  be 
that  the  plaintiffs,  if  they  meant  the  wagon  for  their  own  use.  or 
their  customers,  if  the  wagon  was  bespoke,  would  be  deprived  of  the 
use  of  a  wagon  for  a  period  equal  to  that  for  which  the  set  of  wheels 
was  delayed. 

At  all  events  the  plaintiffs  were  entitled  to  recover  at  a  rate  per 
day  equal  to  whatever  the  jury  should  find  to  be  reasonable  com- 
pensation for  the  loss  of  the  use  of  the  wagons  (see  Cory  v.  Thames 


ELBINGER  ACTIEN-GESELLSCHAFFT  v.  ARMSTRONG.  355 

Ironworks  Co.  Law  Eep.  3  Q.  B.  181).  We  think,  therefore,  it 
would  have  been  a  misdirection  if  the  jury  had  been  directed  to  find 
no  more  than  nominal  damages. 

We  have  had  more  difficulty  in  determining  whether  the  plaint- 
iffs are  entitled  to  keep  the  verdict  for  the  amount  as  it  stands.  If 
we  thought  that  this  amount  could  only  be  come  at  by  laying  down 
as  a  proposition  of  law  that  the  plaintiffs  were  entitled  to  recover 
the  penalties  actually  paid  to  the  Russian  company,  we  should  pause 
before  we  allowed  the  verdict  to  stand.  In  Hadley  v.  Baxendale  (9 
Ex.  341 ;  23  L.  J.  Ex.  179),  it  was  decided  that  it  was  a  misdirection 
in  the  judge  not  to  tell  the  jury  that,  upon  the  facts  before  them, 
they  ought  not  to  take  the  loss  of  the  profits  into  consideration  at 
all  in  estimating  the  damages.  That  was  because  the  court  thought 
that  there  was  no  evidence  of  any  communication  to  the  defendants 
of  such  facts  as  showed  that  this  unusual  loss  must  ensue  from  the 
delay  in  sending  on  the  broken  shaft ;  and  so  far  as  the  case  decides 
that  the  defendant  is  not  liable  for  any  unusual  consequences,  arising 
from  circumstances  of  which  he  has  not  notice,  the  case  has  often 
been  acted  upon.  But  an  inference  has  been  drawn  from  the  lan- 
guage of  the  judgment,  that  whenever  there  has  been  notice  at  the 
time  of  the  contract  that  some  unusual  consequence  is  likely  to  en- 
sue if  the  contract  is  broken,  the  damages  must  include  that  conse- 
quence ;  but  this  is  not,  as  yet  at  least,  established  law.  In  Mayne 
on  Damages,  p.  10  (2d  edition  by  Lumley  Smith),  in  commenting  on 
Hadley  v.  Baxendale  (supra),  it  is  said  :  "  The  principles  laid  down  in 
the  above  judgment,  that  a  party  can  only  be  held  responsible  for 
such  consequences  as  may  be  reasonably  supposed  to  have  been  in 
the  contemplation  of  both  parties  at  the  time  of  making  the  contract, 
and  that  no  consequence  which  is  not  the  necessary  result  of  a 
breach  can  be  supposed  to  have  been  so  contemplated,  unless  it  was 
communicated  to  the  other  party,  are  of  course  clearly  just.  But  it 
may  be  asked,  with  great  deference,  whether  the  mere  fact  of  such 
consequences  being  communicated  to  the  other  party  will  be  suffi- 
cient, without  going  on  to  show  that  he  was  told  that  he  would  be 
answerable  for  them,  and  consented  to  undertake  such  a  liability. 
.  .  .  The  law  says  that  every  one  who  breaks  a  contract  shall  pay 
for  its  natural  consequences  ;  and  in  most  cases  states  what  these 
consequences  are.  Can  the  other  party,  by  merely  acquainting  him 
with  a  number  of  further  consequences,  which  the  law  would  not 
have  implied,  enlarge  his  responsibility  to  the  full  extent  of  all  those 
consequences,  without  any  contract  to  that  effect  ? " 

We  are  not  aware  of  any  case  in  which  Hadley  v.  Baxendale 


356  SEVERAL   DELIVERIES. 

{supra),  has  been  acted  upon  in  such  a  way  as  to  afford  an  answer  to 
the  learned  author's  doubts ;  and  in  Home  v.  Midland  Kw.  Co.  (Law 
Itep.  8  C.  P.  131),  much  that  fell  from  the  judges  in  the  Exchequer 
Chamber  tends  to  confirm  those  doubts.  But  we  do  not  think  it 
necessary  here  to  decide  any  such  question. 

As  the  plaintiffs  did  not  actually  lose  more  than  a  rouble  a  day, 
which  they  paid,  that  forms  the  extreme  limit  of  the  damage  they 
can  recover,  for  they  are  not  entitled  to  make  a  profit  out  of  the  de- 
fendant's default.  Had  the  amount  of  damages  been  actually  left 
to  the  jury,  the  question  would  have  been  whether  the  defendants 
were  liable  for  as  much.  If  the  judge  had  told  the  jury  expressly 
that  the  penalties  as  such  could  not  be  recovered,  but  that  the 
plaintiffs  were  entitled  to  such  damage  as  in  their  opinion  would  be 
fair  compensation  for  the  loss  which  would  naturally  arise  from  the 
delay,  including  therein  the  probable  liability  of  the  plaintiffs  to 
damages  by  reason  of  the  breach  through  the  defendant's  default  of 
that  contract,  to  which,  as  both  parties  knew,  the  defendant's  con- 
tract with  the  plaintiffs  was  subsidiary,  the  direction  would  not, 
at  all  events,  have  been  too  unfavorable  to  the  defendant. 

We  think  that,  if  so  directed,  a  jury  in  all  probability  would,  and 
certainly  reasonably  might,  have  assessed  the  damages  at  100Z.  13s. 
which,  after  all,  is  no  heavy  percentage,  the  contract  price  being 
3,200Z. 

We  think  we  must  construe  the  reservation  as  meaning  that  the 
verdict  should  stand  if  the  jury  properly  directed  might  reasonably 
have  found  this  sum. 

The  rule,  therefore,  must  be  discharged. 

Rule  discharged. 


DEVERILL  v.  BURNELL.  357 


ALTERNATIVE  CONTRACT. 

Measure  of  Damages  ;  Contract  in  the  Alternative  ;  Judgment 

by  Default. 


COURT    OF   COMMON    PLEAS. 

[1873.]    Deverill  v.  Buexell  (L.  R.  8  C.  P.  475;  42  L.  J.  R. 

N.  S.  214). 

Tlie  declaration  stated  that  the  plaintiff  having  shipped  certain  goods  to  a  place  abroad, 
drew  against  the  shipment,  and  intrusted  the  drafts  to  the  defendant  for  present- 
ment, for  reward  to  the  defendant,  on  the  terms  that  the  defendant  should  return  the 
drafts,  if  not  paid  after  acceptance,  to  the  plaintiff,  or  pay  the  plaintiff  the  amount  of 
them  ;  that  all  conditions  were  performed,  &c,  necessary  to  entitle  the  plaintiff  to  a 
return  of  the  drafts  or  to  payment  of  the  amount  of  them,  yet  the  defendant  did  not 
return  the  drafts  nor  pay  the  amount  of  them.  Judgment  was  signed  for  want  of  a 
plea  : 

Held  (per  Keating,  Brett,  and  Grove,  JJ.,  Bovill,  C.  J.,  dis?enting),  that  the  damages 
on  the  contract  alleged  in  the  declaration  must  be  the  amount  of  the  bills. 

Per  Bovill,  C.  J. :  The  contract  as  alleged  in  the  declaration  being  a  contract  in  the  al- 
ternative, it  might  be  performed  by  performance  of  either  branch  of  the  alternative 
at  the  election  of  the  defendant,  and  therefore  the  damages  might  be  the  value  of  the 
bills,  if  of  less  value  than  the  amount  for  which  they  were  drawn. 

Declaration,  for  that  the  plaintiff  had  caused  certain  goods  to  be 
shipped  in  London  on  board  ship,  to  be  carried,  subject  to  certain 
bills  of  lading,  to  Rosario,  in  South  America,  in  order  that  they  might 
be  delivered  to  one  C.  W.  Bollaert  there  on  his  accepting  certain 
drafts  drawn  by  the  plaintiff  on  him  against  the  goods ;  and  there- 
upon the  plaintiff  delivered  to  the  defendant,  and  the  defendant  ac- 
cepted from  the  plaintiff,  the  said  bills  of  lading  and  drafts,  upon  the 
terms  that  the  defendant  should  cause  the  drafts  to  be  presented  at 
Rosario  to  Bollaert  for  acceptance,  and  that  in  the  event  of  the  said 
drafts  being  duly  accepted  the  defendant  should  deliver  over  to  Boll- 
aert the  said  bills  of  lading  on  his  accepting  the  drafts,  and  should 
cause  the  drafts  to  be  presented  for  payment  at  maturity,  and  remit 
to  the  plaintiff  the  proceeds  of  the  drafts  if  the  same  should  be  paid  ; 
and  that,  if  the  drafts  should  not  be  paid,  the  defendant  should  either 
return  the  same  to  the  plaintiff,  or  pay  him  the  amount,  for  reward 
to  the  defendant  in  that  behalf  ;  and  although  the  defendant  accord- 
ingly presented  the  said  drafts  for  acceptance  by  Bollaert,  and  he  ac- 
cepted the  same,  whereupon  the  defendant  delivered  to  him  the  bills 
of  lading,  and  although  all  things  were  done  and  happened  and  all 


358  ALTERNATIVE  CONTRACT. 

times  elapsed  necessary  to  entitle  the  plaintiff  to  have  the  drafts  re- 
turned to  him  or  the  amount  thereof  paid  by  the  defendant  to  him, 
and  to  maintain  this  action,  yet  the  defendant  did  not  nor  would  re- 
turn the  drafts,  nor  did  nor  would  the  defendant  pay  to  the  plaintiff 
the  amount  thereof. 

Judgment  went  by  default  for  want  of  a  plea,  and  on  a  writ  of  in- 
quiry before  the  sheriff  it  was  contended  by  the  defendant's  counsel 
that  upon  the  declaration  as  framed  the  jury  were  entitled  to  assess 
the  damages  at  the  value  of  the  bills,  and  not  the  amount  of 'them. 

The  jury  found  that  the  bills  were  worthless,  and  a  verdict  was  en- 
tered for  the  plaintiff  for  a  farthing  damages. 

A  rule  nisi  had  been  obtained  for  a  new  trial,  or  to  increase  the 
amount  of  the  verdict  to  107Z.,  the  balance  of  the  amount  of  the  bills, 
after  deducting  certain  payments  on  account. 

After  the  argument  of  the  motion  for  a  new  trial,  the  following 
opinions  were  delivered. 

Grove,  J. — The  question  in  the  present  case  turns  upon  the  con- 
struction to  be  put  upon  the  promise  alleged  in  this  declaration.  The 
question  is  an  extremely  doubtful  one,  and  unfortunately  there  is  a 
division  of  opinion  in  the  court.  I  think,  with  the  majority  of  the 
court,  that  the  true  construction  of  the  promise  alleged  is,  that  it  is 
not,  in  the  strictest  sense,  an  alternative  promise,  but  a  promise  that 
the  defendant  would  return  the  bills,  and  if  he  did  not  return  them 
he  would  pay  the  amount  of  them.  In  that  case  it  is  clear  that  the 
defendant  would  be  bound,  if  he  did  not  return  the  bills,  to  pay  the 
amount  of  them.  The  promise  relates  to  a  matter  of  business,  and 
must  receive  the  construction  which  would  be  given  to  the  language 
used  by  business  men  in  the  ordinary  course  of  business.  If,  in  the 
ordinary  affairs  of  life,  I  say  to  a  man,  I  will  return  your  horse  to- 
morrow, or  pay  you  a  clay's  hire  of  him,  the  only  reasonable  construc- 
tion is,  that,  if  I  do  not  return  the  horse,  I  will  pay  a  day's  hire.  If 
the  use  of  the  word  "  or  "  compels  us  to  regard  this  as  a  purely  alter- 
native promise,  then  the  same  construction  would  be  applicable  to 
the  case  I  have  taken  as  an  illustration,  which  would  be  plainly  un- 
reasonable. Here  the  parties  seem  to  me  by  their  agreement  to  have 
said  that  they  will  not  estimate  the  damage  to  accrue  to  the  plaintiff 
by  the  non-return  of  the  bills  at  the  actual  value  of  the  bills,  what- 
ever it  may  be ;  but  they  choose  to  say  that,  if  the  bills  are  not  re- 
turned, the  defendant  shall  be  bound  to  pay  the  amount  of  them.  The 
plaintiff  might  not  choose  to  take  the  risk  of  a  change  of  circum- 
stances, which  might  affect  the  value  either  way,  but  might  prefer  to 
assess  the  value  at  the  amount  of  the  bills.     It  seems  to  me  that  the 


DEVERILL  v.  BURNELL.  359 

question  is,  what  is  the  meaning  of  this  promise  in  ordinary  parlance  ? 
and  we  are  entitled  to  give  it  such  meaning  for  the  purposes  of  the 
present  application.  I  therefore  think  the  rule  should  be  abso- 
lute. 

Bkett,  J. — I  am  of  the  same  opinion.  The  declaration  in  the 
present  case  states  facts  which  show  a  business  relation  between  these 
parties,  and  proceeds  to  set  out  a  contract  made  between  them  bear- 
ing reference  to  such  relation.  It  appears  to  me  that  when  a  busi- 
ness contract  with  relation  to  business  matters  is  set  out  in  a  declara- 
tion, the  court  is  entitled  to  construe  it  according  to  the  ordinary 
rules  applicable  to  the  construction  of  mercantile  contracts ;  that  is  to 
say,  not  merely  according  to  the  strict  rules  of  grammar,  but  so  as  to 
give  a  business  meaning,  and  not  a  fanciful  meaning,  to  every  part  of 
it.  The  promise  here  set  out  is  that  the  defendant  would  either  re- 
turn the  bills  or  pay  the  amount  of  them.  That  promise  must  be 
construed  as  if  we  had  to  construe  it  directly  after  it  was  made  ;  and 
we  have  no  right  to  consider  what  may  have  happened  at  a  subse- 
quent period.  If  the  promise  had  been  simply  to  return  the  bills, 
the  law  woidd  have  implied  that,  if  the  bills  were  not  returned,  the 
defendant  should  be  bound  to  pay  the  damages  actually  occasioned  to 
the  phuntifl:,  which  might  be  equal  to  or  less  than,  the  amount  of  the 
bills.  If  the  parties  making  this  business  contract  had  intended  this, 
they  would  have  contented  themselves  with  making  an  agreement 
that  the  bills  should  be  returned  ;  but  they  are  not  content  with  mak- 
ing this  agreement,  and  they  make  a  further  promise,  to  which,  as  it 
seems  to  me,  we  are  bound  to  give  a  meaning.  The  promise  is  to  re- 
turn the  bills  or  to  pay  the  amount  of  them.  That  is  the  same  as  if 
they  had  said  the  defendant  should  return  the  bills,  or  pay  200?.,  or 
whatever  the  amount  might  be.  If  that  does  not  mean  that  he  should 
return  the  bills,  and  if  not  should  pay  200Z.,  I  do  not  see  what  busi- 
ness meaning  it  could  have.  The  plaintiff  is  intrusting  the  bills  to 
the  defendant  in  order  to  be  presented  for  acceptance,  and  ultimately 
for  payment ;  if  dishonored,  he  may  wish  to  deal  with  them  himself  ; 
he  therefore  makes  a  stipulation  to  insure  their  return — that  if  the 
defendant  will  not  return  them,  he  shall  pay  the  amount  of  them.  If 
this  be  the  proper  construction  of  the  promise,  we  are  entitled,  as  it 
seems  to  me,  to  construe  the  breach  alleged  with  reference  to  such 
promise,  and  give  it  a  construction  which  shall  not  alter  the  effect  of 
the  contract.  The  whole  case,  therefore,  depends  upon  the  true  con- 
struction of  the  contract.  If  this  be  what  I  conceive  it  to  be,  it  fol- 
lows that  the  damages  for  the  breach  of  it  are  the  amount  of  the  bills. 
I  am,  therefore,  of  opinion  that  the  rule  should  be  made  absolute. 


360  ALTERNATIVE  CONTRACT. 

Keating,  J. — I  have  entertained  considerable  doubt  during  the 
course  of  the  argument,  and  I  cannot  say  that  my  doubts  are  entirely 
removed.  I  have  come,  however,  to  the  conclusion  that  the  contract 
as  alleged  in  the  declaration  is  not  to  be  considered  such  as,  according 
to  the  strictest  construction  of  the  words  used,  it  might,  perhaps,  ap- 
pear to  be ;  but  that  it  is  really  a  contract  to  return  the  bills  to  the 
plaintiff,  or,  if  they  are  not  returned,  to  pay  the  amount  of  them.  The 
difficulty  in  the  case  seems  to  me  to  arise  from  the  way  in  which  the 
breach  is  laid.  It  appears  to  me  that  it  would  have  been  competent 
to  the  pleader,  in  declaring  on  the  contract,  to  treat  it  as  a  contract  to 
the  effect  I  have  before  stated.  He  seems  to  have  got  into  difficulty 
by  declaring  on  it  as  a  purely  alternative  contract,  which  would  be 
satisfied  by  the  performance  of  one  thing  or  the  other.  It  seems  to 
me  that  the  proper  way  of  declaring  would  have  been  to  declare  upon 
the  contract  as  one  to  return  the  bills,  and  if  not  pay  the  amount,  and 
accordingly  to  have  shaped  the  breach  as  for  non-payment  of  the 
amount,  alleging  that  the  bills  had  not  been  returned.  I  look  at  the 
contract  as  a  mercantile  contract  made  between  mercantile  men,  and 
it  does  certainly  seem  to  me 'that  the  meaning  contended  for  by  the 
defendant  makes  it  one  which  it  is  scarcely  likely  that  mercantile  men 
would  enter  into.  The  plaintiff  is  sending  out  his  goods,  and  intrusts 
a  correspondent  with  the  drafts  which  he  has  drawn  against  them.  It 
is  not  an  unreasonable  stipulation  to  make,  that  if  not  accepted,  or 
dishonored,  the  defendant  must  return  them  to  the  plaintiff,  that  he 
may  deal  with  them  as  he  pleases,  or,  if  he  does  not  so  return  them, 
must  stand  paymaster  himself.  It  appears  to  me  that,  looking  to  the 
declaration,  that  was  probably  what  the  parties  did  intend.  If  so,  is 
there  any  insuperable  obstacle,  from  the  form  of  the  breach,  to  our 
giving  effect  to  the  construction  at  which  we  are  supposed  to  arrive  as 
to  the  contract  1  I  agree  that  the  breach  must  be  construed  with  re- 
lation to  the  construction  to  be  put  on  the  contract  in  the  declaration. 
On  the  whole,  therefore,  I  think  that  the  rule  should  be  made  abso- 
lute, though  I  am  not  without  considerable  doubts  on  the  subject, 
which  are  very  materially  strengthened  by  the  fact  that  my  lord 
differs. 

Bovill,  C.  J. — I  unfortunately  differ  from  the  rest  of  the  cqnrt. 
The  question  appears  to  me  to  be  one  of  great  difficulty,  and  my  mind 
has  fluctuated  considerably  during  the  course  of  the  argument.  The 
majority  of  the  court  have  arrived  at  a  conclusion  favorable  to  the 
plaintiff  ;  but  the  inclination  of  my  mind  is  in  favor  of  the  defendant. 
The  matter  is  one  of  considerable  doubt,  and  I  need  hardly  say  that  I 
have  some  misgivings  as  to  the  correctness  of  my  opinion,  seeing  that 


DEVERILL  v.  BURNELL.  361 

the  rest  of  the  court  are  of  a  contrary  opinion.  The  question,  as  it 
seems  to  me,  turns  entirely  on  the  construction  of  the  language  in 
which  the  contract  is  alleged  in  the  declaration.  If  the  contract  as 
there  stated  is  simply  in  the  alternative,  to  do  one  of  two  things,  it 
would  be  satisfied  by  the  performance  of  either,  and  the  damages 
would  be  the  loss  occasioned  by  non-performance  of  that  alternative 
which  would  be  least  beneficial  to  the  plaintiff.  If  the  true  con- 
struction be  that  of  the  two  things  to  be  done  one  depended  upon  the 
non-performance  of  the  other,  that  is,  if  the  defendant  did  not  return 
the  bills,  then  he  should  pay  the  amount  of  them,  the  damages  would 
be  the  non-payment  of  that  amount.  The  rule  of  law  is  clear,  that, 
in  the  case  of  alternative  contracts,  the  person  who  has  to  perform 
the  contract  has  the  right  to  elect  which  branch  of  the  alternative  he 
will  perform.  On  the  other  hand,  it  is  equally  clear,  if  the  contract 
is  to  do  a  thing,  and  if  not  to  pay  a  sum  of  money,  then  the  damages 
for  not  doing  the  thing  are  the  sum  of  money.  Under  which  class 
does  this  contract  range  itself  ?  It  must  depend  on  the  language  in 
which  it  is  stated.  I  come  to  the  conclusion  that  the  contract  stated 
in  this  declaration  is  one  of  the  class  which  may  be  called  strictly 
alternative,  and  would  be  satisfied  by  the  performance  of  either 
branch  of  the  alternative,  at  election.  The  rule  as  to  this  class  of 
contracts  is  laid  down  by  Maule,  J.,  in  Cockburn  v.  Alexander  (6  C. 
B.  791,  at  p.  814;  18  L.  J.  C.  P.  71). 

Many  instances  might  be  put,  e.  g.,  the  case  suggested  in  argu- 
ment. A  man  might  contract  that  immediately  after  a  race  he  would 
deliver  over  his  horse  Ajax,  or  pay  1,000^.  In  that  case  the  contract 
would  be  performed  by  either  delivering  the  horse  or  the  money,  at 
election.  There  the  effect  of  the  alternative  might  vary  according  to 
circumstances,  for  if  the  horse  lost  the  race,  the  owner  would 
probably  desire  to  deliver  the  horse  ;  but  if  it  won,  he  might  prefer 
to  part  with  the  money.  What  would  the  damages  be  in  such  a  case  ? 
They  would,  according  to  the  rule  laid  down  by  Maule,  J.,  be  the 
loss  occasioned  by  the  non-performance  of  the  contract  to  the  plaint- 
iff; and,  if  the  contract  could  have  been  performed  by  the  perform- 
ance of  the  alternative  least  beneficial  to  the  plaintiff,  the  measure  of 
damages  would  be  regulated  by  the  loss  occasioned  by  non-perform- 
ance of  that  alternative.  It  may  be  said  that  the  case  I  have  put  is 
like  the  present,  and  such  a  contract  means  that  the  owner  is  to 
deliver  the  horse,  and  if  not  to  pay  the  1,000Z. ;  but  it  seems  to  me 
that,  if  the  terms  of  the  contract  are,  as  alleged  in  the  declaration,  in 
the  alternative,  by  reason  of  the  use  of  the  disjunctive  conjunction 
"  or,"  we  are  not  entitled  to  import  it  into  the  condition  that  if  the 


362  ALTERNATIVE  CONTRACT. 

one  thing  is  not  done  the  other  shall  be,  which  is  to  turn  it  from  an 
alternative  contract  into  one  of  another  character.  One  test,  which 
appears  to  me  to  be  applicable,  is  to  reverse  the  order  in  which  the 
two  alternatives  are  mentioned.  Suppose  the  contract  alleged  were, 
to  pay  l.OOOZ.  or  to  deliver  the  horse.  Clearly  under  such  a  contract 
there  would  be  an  option  to  do  either,  and  it  could  not  be  said  that  it 
was  a  contract  to  pay  the  1,000£.,  or  if  not  to  deliver  the  horse.  So 
also  with  the  present  contract,  if  it  were  alleged  to  be  to  pay  the 
amount  of  the  bills  or  to  deliver  them  up.  Could  it  then  be  said 
that  it  was  anything  but  a  purely  alternative  contract ;  that  it  was  a 
contract  to  pay  the  amount,  and  if  not  to  deliver  up  the  bills  ;  and 
that  damages,  perhaps  exceeding  the  amount  of  the  bills,  might  be 
recovered  for  the  default  in  returning  them  ?  Here  the  jury  have 
assessed  the  value  of  the  bills  at  one  farthing,  but  in  some  cases  the 
actual  damages  for  non-return  of  the  bills,  might  exceed  the  amount 
of  them.  In  whatever  order  the  two  alternatives  are  put,  it  appears 
to  me  that,  the  disjunctive  conjunction  being  used,  the  contract  as 
alleged  in  the  declaration  gives  an  option  which  alternative  the  de- 
fendant will  adopt.  It  seems  to  me  that,  to  read  the  contract  as 
suggested  by  my  learned  brethren,  is  to  make  a  fresh  contract  for  the 
purpose  of  giving  effect  to  speculative  views  as  to  the  intention  of 
the  parties,  and  to  alter  the  natural  signification  of  the  language  that 
is  used.  It  is  clear,  on  the  face  of  the  declaration,  that  the  pleader 
treated  this  as  an  alternative  contract,  for  the  allegation  of  perform- 
ance of  conditions  precedent  is,  that  all  things  were  done  necessary  to 
entitle  the  plaintiff,  not  to  payment  of  the  amount  of  the  bills,  but  to 
the  return  of  the  bills  or  the  payment  of  the  amount  of  them.  It 
may  have  been  that  it  was  with  reference  to  this  view  of  the  declara- 
tion that  the  defendant  allowed  judgment  to  go  by  default.  Under 
these  circumstances,  I  think  we  ought  to  construe  the  declaration 
strictly,  and  are  not  entitled  to  substitute  words  which  import  a  con- 
dition that  one  alternative  shall  be  performed  if  the  other  is  not, 
when,  the  disjunctive  conjunction  "  or "  being  used,  the  natural 
meaning  is  a  simple  alternative.  I  have  had  considerable  doubt  on 
the  matter,  and  regret  to  differ  from  my  learned  brethren,  but  I  feel 
bound  to  express  the  opinion  at  which  I  have  arrived.  I  am  of  opin- 
ion that  this  rule  should  be  discharged. 
Rule  absolute. 


MONDEL   v.    STEEL.  363 


CONTRACTS    FOR  WORK. 

Contract  fob  "Work  according  to  Specifications  ;  Abatement  of 
Price  for  Insufficient  Performance  ;  Recoupment  ;  Sec- 
ond Action. 


EXCHEQUER    OF    PLEAS. 

[1841.]  Moxdel  v.  Steel  (8  M.  &  W.  858). 

Special  assumpsit  on  a  contract  to  build  a  ship  according  to  a  specification,  assigning  a 
breach  in  not  building  the  ship  with  scantling,  fastening,  and  planking,  according  to 
the  specification,  and  alleging  special  damage.  Plea,  that  the  defendant  had  sued 
the  plaintiff  for  the  balance  of  the  agreed  price  of  the  ship,  after  payment  of  3,500/., 
and  also  for  a  sum  of  150/.  for  extra  work,  in  the  form  of  an  action  for  work  and 
labor,  and  for  goods  sold  and  delivered  ;  that  issue  was  joined,  and,  on  the  trial  of 
the  cause,  the  now  plaintiff  gave  evidence  in  his  defense  of  the  same  breach  of  con- 
tract alleged  in  the  declaration,  and  insisted,  if  the  amount  of  compensation  to  which 
he  was  entitled  exceeded  or  equaled  the  balance  and  value  of  the  extra  work,  that 
he  the  now  plaintiff  was  entitled  to  a  verdict ;  if  less,  then  he  was  entitled  to  a  de- 
duction, upon  the  amount  of  both,  to  the  extent  of  such  amount  of  compensation  ; 
that  the  judge  who  tried  the  cause  so  directed  the  jury,  and  the  jury  found  that  the 
now  defendant  had  committed  a  breach  of  the  contract,  and  that  the  now  plaintiff 
was  entitled  to  some  compensation,  which  they  deducted  from  the  price  of  the  ship 
and  the  value  of  the  extra  work ;  that  the  now  defendant  had  judgment  for  the 
amount,  after  such  deduction  had  been  made,  since  the  commencement  of  this  suit. 
Held,  that  the  plea  was  bad  on  general  demurrer. 

Held,  also,  that  all  that  the  plaintiff  could  by  law  be  allowed  in  diminution  of  damages 
on  the  former  trial,  was  a  deduction  from  the  agreed  price,  according  to  the  differ- 
ence between  the  ship  as  she  was  at  the  time  of  delivery,  and  what  she  ought  to  have 
been  according  to  the  contract ;  but  that  any  claim  for  damages  on  account  of  the 
subsequent  necessity  for  repairs  could  not  be  allowed  in  the  former  action,  and  might 
be  recovered  in  this. 

In  all  actions  for  goods  sold  and  delivered  with  a  warranty,  or  for  work  and  labor,  as 
well  as  in  actions  for  goods  agreed  to  be  supplied  according  to  a  contract,  it  is 
competent  for  the  defendant  to  show  how  much  less  the  subject-matter  of  the  ac- 
tion was  worth  by  reason  of  the  breach  of  the  contract :  and  to  the  extent  that 
he  obtains,  or  is  capable  of  obtaining,  an  abatement  of  price  on  that  account, 
he  must  be  considered  as  having  received  satisfaction  for  the  breach  of  con- 
tract ;  and  he  is  precluded  from  recovering  in  another  action  to  that  extent,  but 
no  more. 

Special  assumpsit  on  a  contract  to  build  a  ship  for  the  plaintiff,  at 
a  certain  rate  per  ton,  and  according  to  a  certain  specification  (set- 
ting it  out)  ;  and  the  breach  assigned  was,  for  not  building  the  ship 


364  CONTRACTS   FOR   WORK. 

with  scantling,  fastening,  and  planking,  according  to  the  specifica- 
tion ;  by  reason  whereof  the  ship,  in  a  certain  voyage,  was  so  much 
strained  that  it  became  necessary  to  refasten  and  repair  her ;  and 
thereby  the  plaintiff  lost  the  use  of  her  during  the  time  she  was  un- 
dergoing such  repairs. 

Plea,  that  the  plaintiff  ought  not  further  to  maintain  his  said  ac- 
tion in  respect  of  the  said  alleged  breach  of  contract  in  the  declaration 
mentioned,  because  the  defendant  says  that  he  the  defendant,  hereto- 
fore, to  wit,  on,  &c,  before  the  Barons  of  her  Majesty's  Court  of  Ex- 
chequer at  Westminster,  in  the  county  of  Middlesex,  impleaded  the 
plaintiff  in  an  action  on  promises,  and  by  the  said  action  sought  to 
recover  from  the  plaintiff,  over  and  above  a  sum  of  21.  4s.  9hd.  here- 
inafter mentioned,  the  sum  of  86/.  6s.  4r7.,  being  the  balance  of  the 
price  of  the  said  ship,  in  the  said  declaration  mentioned,  calculated 
according  to  the  provisions  and  terms  of  the  said  memorandum  of 
agreement  therein  also  mentioned,  and  which  remained  unpaid  to  him 
the  now  defendant,  after  the  payment  by  the  now  plaintiff  to  him  of 
the  sum  of  SI.  5s.,  in  the  said  declaration  also  mentioned,  and  after 
credit  being  given  to  the  now  plaintiff  for  two  other  sums  hereinafter 
mentioned ;  and  also  to  recover  from  the  now  plaintiff  the  further 
sum  of  134/.  3s,  2d.,  being  the  value  of  certain  work,  labor,  and  ma- 
terials done  and  provided  for  the  now  plaintiff  by  the  now  defendant 
in  and  about  the  said  ship,  and  which  were  extra  of  and  in  addition 
to  the  work,  labor,  and  materials  mentioned  and  included  in  the  said 
memorandum  of  agreement.  [The  plea  then  set  out  the  whole  of  the 
pleadings  in  that  action,  which  was  indebitatus  assumpsit  in  4,000/., 
for  work  and  materials,  goods  sold  and  delivered,  and  on  an  account 
stated  :  pleas,  1st,  except  as  to  21.  4s.  9\d.,  parcel,  &c,  non-assump- 
sit ;  2  Jly,  as  to  the  21.  -is.  9\d.,  payment  into  court  of  that  sum,  which 
the  now  defendant  accepted  ;  3dly,  except  as  to  the  21.  4s.  9^d.,  pay- 
ment, which  was  denied  by  the  replication  ;  4thly,  except  as  to  21.  4s. 
9\d.,  a  set-off  for  work  and  materials,  goods  sold  and  delivered,  money 
paid,  and  on  an  account  stated.  The  plea  theft  proceeded  as  follows  :] 
And  the  defendant  further  saith,  that  all  the  said  issues  were  duly 
joined  between  him  the  now  defendant,  and  the  now  plaintiff,  and 
afterwards,  to  wit,  at  the  General  Sessions  of  Assize  holden  at  Liver- 
pool, in  and  for  the  southern  division  of  the  county  palatine  of  Lan- 
caster, on,  &c.,  before  Sir  William  Henry  Madle,  Knight,  one  of 
the  justices  of  our  Lady  the  Queen  of  her  Court  of  Common  Pleas  at 
Westminster,  and  Sir  Robert  Mounsey  Eolfe,  Knight,  one  of  the 
Barons  of  our  said  Lady  the  Queen  of  her  Court  of  Exchequer  at 
Westminster,  justices  of  our  said  Lady  the  Queen  of  her  Court  of 


MONDEL   v.    STEEL.  365 

Common  Pleas  of  the  said  county  palatine,  the  said  issues  so  as  afore- 
said joined  came  on  in  due  and  regular  form  of  law,  to  be  tried  before 
the  said  Sir  Robert  Mounsey  Rolfe,  and  the  same  were  then  tried 
in  due  course  of  law,  by  a  jury  of  the  county  duly  summoned,  chosen, 
and  sworn  in  that  behalf,  between  the  now  defendant  and  the  now 
plaintiff.  And  the  defendant  further  says,  that  at  the  said  trial  he, 
the  now  defendant,  duly  proved  and  gave  in  evidence  the  said  mem- 
orandum of  agreement  in  the  said  declaration  mentioned,  and  further 
proved  the  delivery  to  and  acceptance  by  the  now  plaintiff  of  the  ship 
thereby  contracted  to  be  built,  and  that  the  price  thereof,  calculated 
according  to  the  provisions  and  terms  of  the  said  memorandum  of 
agreement  in  that  behalf,  amounted  to  the  sum  of  3,608/.  3s.  10d., 
whereof  the  now  plaintiff  had  paid  him,  the  now  defendant,  the  said 
sum  of  3,500/.  in  the  said  declaration  mentioned,  and  was  also  entitled 
to  credit  for  two  other  snms,  namely,  18/.  7s.  6d.  and  31.  10s.,  leaving 
the  said  sum  of  86/.  6s.  4d.,  the  balance  unpaid  to  the  now  defend- 
ant ;  and  he  the  defendant  further  proved  and  gave  evidence  that  he, 
the  now  defendant,  had  done  and  provided  for  the  now  plaintiff,  and 
at  his  request,  for  the  said  ship,  work,  labor,  and  materials,  to  the 
value  of  134/.  Bs.  2d.,  which  was  extra  of  and  in  addition  to  the  work, 
labor,  and  materials  in  the  said  memorandum  of  agreement  men- 
tioned. And  the  now  defendant  further  says,  that  the  now  plaintiff, 
at  the  said  trial,  and  in  defense  of  the  said  causes  of  action  of  him  the 
now  defendant,  and  in  answer  thereto,  averred  and  gave  evidence  of 
the  very  same  and  identical  breach  of  contract  alleged  by  the  now 
plaintiff  to  have  been  committed  by  the  now  defendant  in  the  said 
declaration  in  this  suit,  that  is  to  say,  that  the  now  defendant  did  not 
build  the  said  ship  of  the  very  best  materials,  in  conformity  with  the 
said  specification  in  the  said  declaration  mentioned,  and  did  not  build 
the  same  with  the  whole  of  the  scantling,  fastening,  and  planking 
inside  and  outside,  such  as  is  mentioned  in  Lloyd's  Survey  Book  for 
a  twelve  years'  ship,  but  omitted  and  neglected  so  to  do.  And  the 
defendant  further  says,  that  the  now  plaintiff,  at  the  said  trial,  pro- 
duced witnesses  and  gave  evidence  in  support  of  his  said  alleged  de- 
fense, and  in  answer  to  the  said  causes  of  action  of  him  the  now  de- 
fendant ;  and  then  insisted  at  the  said  trial,  that  if  the  said  jury  were 
of  opinion  and  found  that  the  now  defendant  had  committed  the  said 
breach  of  contract,  or  any  part  thereof,  and  that  the  amount  of  com- 
pensation or  of  damages  to  which  he  the  now  plaintiff  was  entitled 
by  reason  thereof,  exceeded  or  equaled  the  amount  of  the  said  bal- 
ance, and  the  value  of  the  said  extra  and  additional  work,  labor,  and 
materials  as  aforesaid,  that  he,  the  now  plaintiff,  was  entitled  to  have 


366  CONTRACTS   FOR   WORK. 

the  verdict  found  for  him.  And  further,  that  if  the  said  jury  were 
of  opinion  and  found  that  he  the  said  plaintiff  was  entitled  to  any 
compensation  or  damages  in  respect  of  the  said  alleged  breach  of  con- 
tract, or  any  part  thereof,  although  the  same  might  be  less  in  amount 
than  the  amount  of  the  said  balance,  and  the  said  value  of  the  said 
extra  and  additional  work,  labor,  and  materials,  that  he  the  now 
plaintiff  was  entitled  to  have  the  same  deducted  from  the  said  last- 
mentioned  amount ;  and  the  said  now  plaintiff  then  prayed  the  said 
Baron  to  state  to  and  inform  the  said  jury,  that  he  the  now  plaintiff 
was  so  entitled.  And  the  defendant  further  saith,  that  in  pursuance 
of  such  prayer  of  the  now  plaintiff,  and  in  accordance  therewith,  the 
said  Baron  did  then,  in  summing  up  the  evidence  at  the  said  trial, 
state  to  and  direct  the  said  jury,  that  if  they  found  and  were  of  opin- 
ion that  the  now  defendant  had  committed  the  said  alleged  breach  of 
contract,  or  any  part  thereof,  that  they  should  decide  and  ascertain 
what  was  the  amount  of  compensation  or  damages  to  which  the  now 
plaintiff  was  entitled  by  reason  thereof  ;  and  that  if  the  said  compen- 
sation or  damages  equaled  or  exceeded  the  amount  of  the  said  bal- 
ance, and  the  value  of  the  said  extra  and  additional  work  and  labor 
and  materials,  that  they  should  find  their  verdict  for  the  plaintiff  in 
this  action  ;  and  that  if  the  amount  of  compensation  or  damages  to 
which  they  found  the  plaintiff  in  this  action  was  entitled,  was  less 
than  the  amount  of  the  said  balance  and  the  value  of  the  said  extra 
and  additional  work  and  labor  and  materials,  that  they  should  deduct 
such  compensation  or  damages  from  the  said  amount,  and  find  their 
verdict  for  the  defendant  in  this  action  for  the  difference  only.  And 
the  defendant  further  says,  that  the  said  jury,  in  pursuance  of  such 
direction,  did  then  find  that  the  defendant  in  this  action  had  com- 
mitted a  breach  of  the  said  contract  in  the  declaration  in  this  action 
mentioned,  and  that  the  plaintiff  in  this  action  was  entitled  to  com- 
pensation and  damages  in  respect  thereof ;  and  then  found  their  ver- 
dict for  the  now  defendant,  for  the  difference  only  between  the  said 
compensation  and  damages  which  the/ so  found  the  plaintiff  in  this 
action  was  entitled  to  by  reason  of  the  said  breach  of  contract,  and 
the  amount  of  the  said  balance,  and  the  value  of  the  said  extra  and 
additional  work  and  labor  and  materials  as  aforesaid,  that  is  to  say, 
for  the  sum  of  1201.  only,  which  was  considerably  less  than  the  amount 
of  the  said  balance  as  aforesaid,  and  the  value  of  the  said  extra  and 
additional  work  and  labor  and  materials.  And  the  defendant  further 
says,  that  the  said  jury  then  found  all  the  said  issues  so  as  aforesaid 
joined  for  him  the  defendant,  and  assessed  his  damages  on  occasion 
of  the  premises  in  the  said  action,  besides  his  costs  and  charges  by 


MONDEL  v.    STEEL.  367 

him  in  his  said  suit,  to  the  said  sum  of  120Z.  as  aforesaid,  and  those 
costs  and  charges  to  40.?.  ;  and  such  proceedings  were  afterwards  had 
in  her  Majesty's  said  Court  of  Exchequer  at  Westminster,  that  after- 
wards, and  after  the  commencement  of  this  suit,  to  wit,  on,  &c,  afore- 
said, it  was  considered  by  the  said  court  that  the  now  defendant  should 
recover  against  the  now  plaintiff  his  said  damages,  costs,  and  charges 
by  the  jury  aforesaid  in  form  aforesaid  assessed,  and  also  2621.  for  his 
costs  and  charges  by  the  said  court  adjudged  of  increase  to  the  now 
defendant,  with  his  assent,  which  said  damages,  costs  and  charges  in 
the  whole  amounted  to  384Z.,  and  the  now  plaintiff,  in  mercy,  &c, 
as  by  the  record  and  proceedings  thereof  still  remaining  in  the  said 
court  of  our  Lady  the  Queen,  before  the  Barons  of  her  Exchequer  at 
Westminster,  more  fully  and  at  large  appears,  which  said  judgment 
still  remains  in  full  force  and  effect,  not  in  the  least  reversed  or  made 
void.  And  the  defendant  in  fact  saith,  that  the  said  alleged  breach 
of  contract  by  the  now  defendant,  or  by  the  plaintiff  in  the  declara- 
tion in  this  suit  alleged,  is  the  very  same  identical  breach  of  contract 
so  alleged  and  proved  by  the  now  plaintiff  at  the  said  trial,  and  relied 
upon  by  him  as  aforesaid,  and  for  and  in  respect  of  which  he  ob- 
tained such  compensation  and  damages  as  aforesaid.  Verification  and 
prayer  of  judgment. 

Special  demurrer,  and  joinder  in  demurrer. 

After  argument  of  the  demurrer,  and  advisement  thereon  by  the 
court,  its  judgment  was  now  delivered  by 

Parke,  B. — In  this  case,  the  declaration  is  in  special  assumpsit  on 
a  contract  to  build  a  ship  for  the  plaintiff,  at  a  certain  rate  per  ton, 
and  according  to  a  certain  specification  ;  and  the  breach  assigned  is 
for  not  building  a  vessel  with  scantlings,  fastenings  and  planking, 
according  to  such  specification  ;  by  reason  whereof  the  ship,  on  a 
voyage  from  London  to  New  South  "Wales  and  back,  was  so  much 
strained  that  it  became  necessary  to  refasten  and  repair  her. 

To  this  declaration  there  was  one  plea,  to  which  it  is  unnecessary 
to  allude,  as  it  was  admitted  to  be  bad  on  special  demurrer,  and  it  is 
to  be  amended ;  and  a  second  plea,  on  which  the  question,  which  we 
have  taken  time  to  consider,  arises. 

This  plea  states  in  substance,  that  the  defendant  had  sued  the 
plaintiff  for  the  balance  of  the  agreed  price  of  the  vessel,  after  pay- 
ment of  3,500Z.,  and  also  for  a  sum  of  134Z.  odd  for  extra  work,  in 
the  form  of  an  action  for  work  and  labor,  and  for  goods  sold  and 
delivered  ;  that  issue  was  joined,  and,  on  the  trial  of  the  cause,  the 
plaintiff  gave  evidence  in  his  defense  of  the  same  breach  of  contract 
alleged  in  the  declaration  ;    and  insisted,  that  if  the  amount  of  com- 


368  CONTRACTS   FOR   WORK. 

pensation  to  which,  he  was  entitled,  exceeded  or  equaled  the  balance 
of  the  price  and  the  value  of  the  extra  work,  the  now  plaintiff  was 
entitled  to  a  verdict ;  if  it  was  less,  that  he  was  entitled  to  a  deduc- 
tion from  the  amount  of  both,  of  such  amount  of  compensation. 
The  plea  proceeds  to  state  (and,  we  must  assume,  correctly,  for  the 
purposes  of  this  argument,  though  the  statement  has  arisen  from 
mistake),  that  the  learned  judge  before  whom  the  cause  was  tried,  my 
brother  Rolfe,  so  directed  the  jury  ;  and  that  the  jury  found  that  the 
now  defendant  had  committed  a  breach  of  contract,  and  wTas  entitled 
to  some  compensation,  which  they  deducted  from  the  price  of  the 
vessel  and  value  of  the  extra  work ;  and  the  now  defendant  had 
judgment  for  the  amount,  after  such  deduction  had  been  made,  since 
the  commencement  of  this  suit. 

The  plaintiff  demurred  to  this  plea,  assigning  several  causes  of 
special  demurrer,  which  it  is  not  necessary  to  notice,  as  we  are  all  of 
opinion  that  it  is  bad  in  substance. 

The  ground  on  which  it  was  endeavored  to  support  the  plea,  in  a 
very  ingenious  argument,  was  this  :  that  a  defendant  in  an  action  for 
the  stipulated  price  of  a  chattel,  which  the  plaintiff  had  contracted 
to  make  for  the  defendant  of  a  particular  quality,  or  of  a  specific 
chattel  sold  with  a  warranty,  and  delivered,  had  the  option  of  setting 
up  a  counter-claim  for  breach  of  the  contract  in  the  one  instance,  or 
the  warranty  in  the  other,  in  the  nature  of  a  cross  action  ;  and  that 
if  he  exercised  that  option,  he  was  in  the  same  situation  as  if  he  had 
brought  such  an  action  ;  and  consequently,  could  not,  after  judgment 
in  one  action,  bring  another ;  and  the  case  was  likened  to  a  set-off 
under  the  statutes.  This  argument  was  founded  on  no  other  authority 
than  an  expression  of  Lord  Tenterden,  in  giving  the  judgment  of 
the  court  in  the  case  of  Street  v.  Blay  (2  B.  &  Aid.  [22  E.  C.  L.  R.] 
462),  his  lordship  having  said  that  a  breach  of  warranty  might  be 
given  in  evidence  in  an  action  for  the  price  of  a  specific  article  sold, 
in  mitigation  of  damages,  "  on  tha.  principle,  it  should  seem,  of  avoid- 
ing circuity  of  action."  But  we  are  all  of  opinion  that  no  such 
inference  is  to  be  drawn  from  that  expression  ;  what  was  meant  was, 
that  the  sum  to  be  recovered  for  the  price  of  the  article  might  be 
reduced  by  so  much  as  the  article  was  diminished  in  value  by  reason 
of  the  non-compliance  with  the  warranty ;  and  that  this  abatement 
was  allowed  in  order  to  save  the  necessity  of  a  cross  action.  For- 
merly, it  wras  the  practice,  where  an  action  was  brought  for  an 
agreed  price  of  a  specific  chattel,  sold  with  a  warranty,  or  of  work 
which  was  to  be  performed  according  to  contract,  to  allow  the  plaint- 
iff to  recover  the   stipulated  sum,  leaving  the  defendant  to  a  cross 


MONDEL  v.    STEEL.  369 

action  for  breach  of  the  warranty  or  contract ;  in  which  action,  as 
well  the  difference  between  the  price  contracted  for  and  the  real 
value  of  the  articles  or  of  the  work  done,  as  any  consequential  dam- 
age, might  have  been  recovered ;  and  this  course  was  simple  and 
consistent.  In  the  one  case,  the  performance  of  the  warranty  not 
being  a  condition  precedent  to  the  payment  of  the  price,  the  defend- 
ant, who  received  the  chattel  warranted,  has  thereby  the  property 
vested  in  him  indefeasibly,  and  is  incapable  of  returning  it  back  ;  he 
has  all  that  he  stipulated  for  as  the  condition  of  paying  the  price,  and 
therefore  it  was  held  that  he  ought  to  pay  it,  and  seek  his  remedy  on 
the  plaintiff's  contract  of  warranty.  In  the  other  case,  the  law  ap- 
pears to  have  construed  the  contract  as  not  importing  that  the 
jDerformance  of  every  portion  of  the  work  should  be  a  condition 
precedent  to  the  payment  of  the  stipulated  price,  otherwise  the  least 
deviation  would  have  deprived  the  plaintiff  of  the  whole  price ;  and 
therefore  the  defendant  was  obliged  to  pay  it,  and  recover  for  any 
breach  of  contract  on  the  other  side.  But  after  the  case  of  Basten 
v.  Butter  (7  East,  479),  a  different  practice,  which  had  been  partially 
adopted  before  in  the  case  of  King  v.  Boston  (7  East,  481,  n.),  began 
to  prevail,  and  being  attended  with  much  practical  convenience,  has 
been  since  generally  followed  ;  aud  the  defendant  is  now  permitted 
to  show  that  the  chattel,  by  reason  of  the  non-compliance  with  the 
warranty  in  the  one  case,  and  the  work,  in  consequence  of  the  non- 
performance of  the  contract  in  one  other,  were  diminished  in  value 
(Kist  v.  Atkinson,  2  Camp.  64 ;  Thornton  v.  Place,  1  M.  &  Rob. 
218),  &c.  The  same  practice  has  not,  however,  extended  to  all  cases 
of  work  and  labor,  as  for  instance  that  of  an  attorney  (Tempi er  v. 
M'Lachlan,  2  T.  R.  136),  unless  no  benefit  whatever  has  been  derived 
from  it ;  nor  in  an  action  for  freight  (Shi els  v.  Davies,  4  Camp.  119). 
It  is  not  so  easy  to  reconcile  these  deviations  from  the  ancient  prac- 
tice with  principle,  in  those  particular  cases  above-mentioned,  as  it  is 
in  those  where  an  executory  contract,  such  as  this,  is  made  for  a 
chattel  to  be  manufactured  in  a  particular  manner,  or  goods  to  be 
delivered  according  to  a  sample  (G-erniaine  v.  Burton,  3  Stark.  [14 
E.  C.  L.  E.]  32),  where  the  party  may  refuse  to  receive,  or  may 
return  in  a  reasonable  time,  if  the  article  is  not  such  as  bargained 
for  ;  for  in  these  cases  the  acceptance  or  non-return  affords  evidence 
of  a  new  contract  on  a  quantum  valebat ;  whereas,  in  a  case  of  a 
delivery  with  a  warranty  of  a  specific  chattel,  there  is  no  power  of 
returning,  and  consequently  no  ground  to  imply  a  new  contract ;  and 
in  some  cases  of  work  performed,  there  is  difficulty  in  finding  a  rea- 
son for  such  presumption.  It  must  however  be  considered,  that  in 
24 


370  CONTRACTS  FOR  WORK. 

all  these  cases  of  goods  sold  and  delivered  with  a  warranty,  and  work 
and  labor,  as  well  as  the  case  of  goods  agreed  to  be  supplied  accord- 
ing to  a  contract,  the  rule  which  has  been  found  so  convenient  is 
established ;  and  that  it  is  competent  for  the  defendant,  in  all  of 
those,  not  to  set  off,  by  a  proceeding  in  the  nature  of  a  cross  action, 
the  amount  of  damages  which  he  has  sustained  by  breach  of  the 
contract,  but  simply  to  defend  himself  by  showing  how  much  less 
the  subject-matter  of  the  action  was  worth,  by  reason  of  the  breach 
of  contract ;  and  to  the  extent  that  he  obtains,  or  is  capable  of  ob- 
taining an  abatement  of  price  on  that  account,  he  must  be  considered 
as  having  received  satisfaction  for  the  breach  of  contract,  and  is 
precluded  from  recovering  in  another  action  to  that  extent ;  but  no 
more. 

The  opinion,  therefore,  attributed  on  this  record  to  the  learned 
judge  is,  we  think,  incorrect,  and  not  warranted  by  law  ;  and  all  the 
plaintiff  could  by  law  be  allowed  in  diminution  of  damages,  on  the 
former  trial,  was  a  deduction  from  the  agreed  price,  according  to  the 
difference,  at  the  time  of  the  delivery,  between  the  ship  as  she  was, 
and  what  she  ought  to  have  been  according  to  the  contract ;  but  all 
claim  for  damages  beyond  that,  on  account  of  the  subsequent  neces- 
sity for  more  extensive  repairs  could  not  have  been  allowed  in  the 
former  action,  and  may  now  be  recovered. 

We  have  already  observed  in  the  course  of  the  argument,  that 
the  defense  made  in  the  second  plea  cannot  be  supported  on  the 
ground  that  it  discloses  a  mutual  agreement  by  the  plaintiff  and 
defendant  to  leave  the  amount  of  the  cross  claim  to  the  jury  as  arbi- 
trators, and  that  they  have  made  an  award.  The  plea  does  not  state 
any  such  agreement,  or  an  equivalent  thereto.  Our  judgment  must 
therefore  be  for  the  plaintiff. 

Judgment  for  the  plaintiff. 


CLARK   v.   THE  MAYOR  OF  NEW  YORK.  371 


Contract;   Deviation  by  Consent;  Alterations;   Eescission. 


COURT  OF  APPEALS,  NEW  YORK. 

[1850.]    Clajrk  v.  The  Mayor  of  New  York  (4  X.  Y.  338). 

When  parties  deviate  from  the  terms  of  a  special  contract,  the  contract  price  will,  in  an 
action  for  work,  labor  and  materials,  so  far  as  applicable,  generally  be  the  rule  of 
damages.  But  when  the  contract  is  terminated  by  one  party  against  the  consent  of 
the  other,  the  latter  will  not  be  confined  to  the  contract  price,  but  may  bring  his 
action  for  a  breach  of  the  contract,  and  recover  as  damages  all  that  he  may  lose  by 
way  of  profits  in  not  being  allowed  to  fulfill  the  contract.  Or  the  contractor  may 
waive  the  contract,  and  bring  his  action  on  the  common  counts  for  work  and  labor 
generally,  and  recover  what  the  work  done  is  actually  worth.  But  in  this  case  he 
will  not  be  allowed  to  recover  as  damans  anything  for  speculative  profits.  The 
actual  value  of  the  work  and  materials  must  be  the  rule  of  damages. 

This  was  an  appeal  to  the  Court  of  Appeals  of  New  York,  from 
a  judgment  of  the  Supreme  Court  of  the  State,  affirming  the  decis- 
ion of  the  referees  before  whom  the  case  was  heard. 

The  action  was  to  recover  for  work,  labor  and  materials. 

In  1838,  the  plaintiffs  made  a  contract,  under  seal,  with  the 
water  commissioners  of  New  York  city,  to  construct  a  section  of  the 
Croton  acqueduct,  including  the  receiving  reservoir,  according  to 
specifications  annexed  to  the  contract.  The  contract  specified  the 
rate  of  compensation  to  the  contractors  for  the  different  kinds  of 
work  to  be  done  under  it.  One  dollar  was  the  rate  per  cubic  yard 
for  all  the  rock  excavation.  It  was  also  stipulated  that  the  plaintiffs 
should  make  any  changes  in  the  form,  dimensions  and  material  of 
the  work  which  the  commissioners  or  the  chief  engineer  employed 
by  them  should  direct ;  that  the  engineer  should  decide  how  much 
of  the  different  kinds  of  work  was  to  be  paid  for  under  the  contract, 
and  what  was  to  be  the  amount  of  the  contractors'  compensation  at 
the  stipulated  rates,  and  all  other  questions  relating  to  the  execution 
of  the  contract  on  the  part  of  the  contractors,  which  decisions  were 
to  be  final. 

The  declaration  contained  a  special  count  on  the  contract,  stating 
it  as  made  by  the  corporation  of  the  city,  and  alleging  that  the 
plaintiffs  provided  materials  and  executed  much  of  the  work,  and 
were  ready  to  complete  it,  but  were  wrongfully  stopped  by  the 
plaintiffs  during  its  progress,  whereby  they  lost  the  gains  they  would 
have  derived  from  the  contract. 


372  CONTRACTS  FOR  WORK. 

There  were  also  counts  for  work,  labor  and  materials,  the  money 
counts,  and  an  account  stated. 

On  the  trial,  the  plaintiffs'  counsel  offered  the  contract  in  evi- 
dence. It  was  objected  to  on  the  ground  that  it  purported  to  be 
made  by  the  commissioners,  whereas  the  declaration  set  forth  one 
made  by  the  defendants. 

The  objection  was  overruled  on  the  ground  that  the  commission- 
ers were  the  defendants'  agents,  and  the  contract,  with  the  annexed 
specifications,  was  read  in  evidence. 

On  the  trial,  it  appeared  that  an  estimate  was  submitted  at  the 
time  of  letting  the  contract,  showing  that  the  amount  of  rock  exca- 
vation was  150,000  yards.  It  was  proved  that  the  work  was  stopped 
by  the  commissioners'  orders,  and  that  the  amount  of  rock  excavated 
at  that  time,  was  08,786  yards,  and  that  to  finish  the  work  accord- 
ing to  the  plans  and  specifications,  would  have  required  86,000  yards 
more  ;  that  6,000  yards  of  the  rock  excavation  done  was  worth  $4  20 
per  yard,  and  the  rest  about  $1  20  per  yard.  The  excavation  not 
done  would  cost  only  about  35  cents  a  yard.  After  the  work  was 
stopped,  the  engineer  estimated  the  amount  of  the  various  kinds  of 
work  which  had  been  done  under  the  contract,  and  gave  a  certificate 
of  such  estimate.  A  balance  of  $4,159  06  remained  due  the  plaint- 
iffs, as  was  admitted.  In  ascertaining  the  balance  the  rock  excava- 
tion was  estimated  at  the  contract  price  of  one  dollar  a  yard.  The 
plaintiffs  claimed  a  large  sum  in  addition  for  the  excavation. 

The  referees  found  due  the  plaintiffs  $50,950  06,  which  included 
$46,800  in  addition  to  the  above  balance  of  $4,159  06. 

The  referees  made  a  special  report,  in  which  they  stated  that 
they  had  "  ascertained  from  the  proofs  that  the  plaintiffs  had  been 
stopped  by  the  defendants  in  the  performance  of  the  entire  work ; 
that  by  the  contract  between  the  parties  the  price  of  the  rock  exca- 
vation was  fixed  at  one  dollar  per  yard,  which  they  had  been 
governed  by,  taking  together  the  whole  quantity  originally  required 
to  be  excavated  ;  that  they  had  also  ascertained  the  relative  value  of 
the  quantity  excavated  and  of  the  quantity  not  excavated,  and  on 
comparing  such  relative  value  they  found  there  was  due  to  the 
plaintiffs  for  the  portion  excavated  the  sum  of  $46,800." 

The  Supreme  Court  affirmed  the  decision  of  the  referees,  and 
after  judgment  for  the  sum  reported,  the  defendants  appealed  to 
this  court. 

Pratt,  J. — The  counsel  for  the  plaintiffs  abandoned  upon  the 
argument  all  claim  to  recover  upon  the  special  count,  and  conceded 
that  they  must  recover,  if  at  all,  upon  the  common  count  for  a  quan- 
tum meruit.     Upon  this  count,  therefore,  two  questions  arise  in  the 


CLARK  v.   THE  MAYOR  OF  NEW  YORK.  373 

case,  the  first  upon  the  right  to  recover,  and  the  second  upon  the 
rule  adopted  for  the  assessment  of  damages. 

Much  of  the  apparent  difficulty  in  this  case  results  from  the  ob- 
scure manner  in  which  the  facts  are  stated  in  the  special  report.  It 
is  not  easy  to  ascertain  from  the  report  the  grounds  upon  which  the 
plaintiffs'  right  to  recover  was  placed  in  the  court  below,  nor  the 
rule  adopted  in  assessing  the  damages. 

[The  learned  justice,  after  holding  that  the  original  contract  with 
the  water  commissioners  gave  them  the  right  at  any  time  to  change 
the  form,  dimensions,  or  material  of  the  work,  but  did  not  author- 
ize them  to  stop  the  work  in  an  unfinished  state,  and  thus  arbitrarily 
annul  the  contract,  then  proceeded  as  follows  :  ] 

On  the  question  of  damages  the  special  report  is  more  obscure, 
if  possible,  than  upon  the  question  just  considered.  It  is  clear  that 
under  the  common  counts  the  plaintiffs  cannot  recover  the  same 
amount  of  damages  which  they  might  be  entitled  to  recover  in  an 
action  for  a  breach  of  the  special  contract.  They  must  be  confined, 
in  this  action,  either  to  the  price  of  the  work  stipulated  in  the  con- 
tract, or  the  actual  worth  of  the  work  done.  When  parties  deviate 
from  the  terms  of  a  special  contract,  the  contract  price  will,  so  far 
as  applicable,  generally  be  the  rule  of  damages.  But  when  the  con- 
tract is  terminated  by  one  party  against  the  consent  of  the  other,  the 
latter  will  not  be  confined  to  the  contract  price,  but  may  bring  his 
action  for  a  breach  of  the  contract  and  recover  as  damages  all  that 
he  may  lose  by  way  of  profits  in  not  being  allowed  to  fulfill  the  con- 
tract ;  or  he  may  waive  the  contract  and  bring  his  action  on  the  com- 
mon counts  for  work  and  labor  generally,  and  recover  what  the  work 
done  is  actually  worth.  But  in  the  latter  case  he  will  not  be  allowed 
to  recover  as  damages  anything  for  speculative  profits,  but  the  actual 
value  of  the  work  and  materials  must  be  the  rule  of  damages.  He 
cannot  assume  the  contract  price  as  the  true  value  of  the  work  nec- 
essary to  complete  the  whole  job,  and  then  recover  the  proportion 
which  the  work  done  will  bear  to  the  whole  job,  although  it 
may  amount  to  more  than  either  the  contract  price  or  the  ac- 
tual value.  This  would  be  allowing  indirectly  a  recovery  for 
speculative  profits  upon  the  common  counts.  If  the  party  seeks  to 
recover  more  than  the  actual  worth  of  his  work,  in  a  case  where  he 
has  been  prevented  from  performing  the  entire  contract,  he  must 
resort  to  his  action  directly  upon  the  contract ;  but  when  he  elects 
to  consider  the  contract  rescinded,  and  goes  upon  the  quant  inn 
meruit,  the  actual  value  is  the  rule  of  damages.  The  injustice  of 
any  other  rule  is  very  apparent  in  this  case.  Several  different  kinds 
of  work  are  specified  in  the  contract,  and  a  specific  price  per  yard 


374  CONTRACTS   FOR  WORK. 

attached  to  each.  The  plaintiffs  have  selected  the  rock  excavation 
from  the  different  kinds  of  work  specified,  and  proved  that  the  part 
performed  was  worth  some  three  times  as  much  per  yard  as  the  part 
remaining  unperformed,  and  have  recovered  accordingly ;  although 
had  all  the  different  kinds  of  work  specified  in  the  contract  been 
taken  into  consideration,  it  is  quite  probable  that  upon  a  general 
average  of  the  work  the  part  performed  would  be  found  no  more 
difficult  than  that  remaining  unperformed.  It  is  at  all  events  quite 
clear,  that  justice  could  not  be  done  without  an  investigation  of  all 
the  different  kinds  of  work  specified.  The  contract  is  entire,  and  if 
it  be  resorted  to  at  all  as  regulating  the  damages,  it  should  only  be 
resorted  to  in  connection  with  all  the  kinds  of  work  specified 
therein. 

This  question  then  arises :  what  rule  did  the  referees  in  fact 
adopt  %  The  special  report,  in  giving  their  final  conclusion,  says, 
"  the  price  of  the  rock  excavation  was  fixed  at  one  dollar  per  yard, 
which  they  have  been  governed  by,  taking  the  whole  quantity  orig- 
inally required  to  be  excavated ;  that  they  have  ascertained  the  rela- 
tive value  of  the  whole  quantity  excavated,  and  of  the  quantity  re- 
maining not  excavated;  and  comparing  such  relative  value,  they 
find  there  is  due  from  the  defendants  to  the  plaintiffs,  for  the  por- 
tion excavated,  the  sum  of  $46,800."  Although  this  is  anything 
but  a  lucid  statement,  yet,  if  it  means  anything,  it  must  mean  that 
the  referees  neither  allowed  the  actual  value  of  the  work  performed, 
nor  the  price  per  yard  stipulated  in  the  contract ;  but  assuming  the 
estimated  quantity  as  the  whole  rock  excavation,  they  ascertained 
its  aggregate  value  at  one  dollar  per  yard.  They  then  assumed  that 
the  part  performed  was  worth  some  three  times  as  much  per  yard  as 
that  remaining  unperformed,  and  assessed  the  damages  accordingly, 
assuming  the  average  value  of  the  whole  work  at  one  dollar  per  yard, 
making  an  aggregate  of  $150,000.  »  By  this  means,  it  will  be  noticed 
that  the  plaintiffs  were  enabled  to  recover  for  some  66,000  cubic 
yards  of  excavation  nearly  $113,000,  a  much  greater  sum  than  the 
cubic  yards  actually  excavated  would  amount  to,  either  at  one  dol- 
lar per  yard  or  at  the  price  per  yard  which  the  excavation  was 
proved  to  be  worth.  At  the  former  price  the  plaintiffs  had  received 
the  whole  amount  due,  into  some  $3,483  49,  which  was  conceded  to 
be  due ;  and  at  the  highest  prices  proved  for  the  work  done,  there 
would  remain  due  some  $34,088,  a  sum  much  less  than  the  amount 
found  due  by  the  referees. 

It  is  clear,  therefore,  whether  I  am  right  or  wrong  in  the  inter- 


DERMOTT   v.   JONES.  375 

pretation  which  I  have  given  their  report,  that  an  error  has  been 
committed  by  the  referees,  for  which  the  judgment  of  the  Supreme 
Court  should  be  reversed  and  a  new  trial  ordered. 
Judgment  reversed. 


Executory  Contract  ;  Part  Performance  ;  .Recoupment. 


SUPREME   COURT    OF   THE   UNITED    STATES. 

[1864.]  Dermott  v.  Jones  (2  Wall.  1). 

While  a  special  contract  remains  executory,  the  plaintiff  must  sue  upon  it.  When  it  has 
been  fully  executed  according  to  its  terms,  and  nothing  remains  to  be  done  but  the 
payment  of  the  price,  he  may  sue  either  on  it  or  in  indebitatus  assumpsit,  relying,  in 
this  last  case,  upon  the  common  counts ;  and  in  either  case  the  contract  will  deter- 
mine the  rights  of  the  parties. 

When  he  has  been  guilty  of  fraud,  or  has  willfully  abandoned  the  work,  leaving  it  un- 
finished, he  cannot  recover  in  any  form  of  action.  Where  he  has  in  good  faith  ful- 
filled, but  not  in  the  manner  nor  within  the  time  prescribed  by  the  contract,  and 
the  other  party  has  sanctioned  or  accepted  the  work,  he  may  recover  upon  the  com- 
mon counts  in  indebitatus  assumpsit. 

He  must  produce  the  contract  upon  the  trial,  and  it  will  be  applied  as  far  as  it  can  be 
traced;  but  if,  by  fault  of  the  defendant,  the  cost  of  the  work  or  material  has  been 
increased,  in  so  far  the  jury  will  be  warranted  in  departing  from  the  contract  prices. 
In  such  case,  the  defendant  is  entitled  to  recoup  for  the  damages  he  may  have  sus- 
tained by  the  plaintiff's  deviations  from  the  contract,  not  induced  by  himself,  both 
as  to  the  manner  and  time  of  the  performance. 

Jones,  a  mason  and  house-builder,  contracted  with  Miss  Dermott 
to  build  a  house  for  her,  the  soil  on  which  the  house  was  to  be  built 
being  her  own.  The  house  was  to  be  built  according  to  very  de- 
tailed plans  and  specifications,  which  the  "  architect  "  of  Miss  Der- 
mott had  prepared,  and  which  were  made  part  of  the  contract.  In 
the  contract,  Jones  covenanted  that  he  would  procure  and  supply 
all  matters  requisite  for  the  execution  of  the  work  "  in  all  its  parts 
and  details,  and  for  the  complete  finish  and  fitting  for  use  and  occu- 
pation of  all  the  houses  and  buildings,  and  the  several  apartments 
of  the  house  and  buildings,  to  be  erected  pursuant  to  the  plan  of  the 
work  described  and  specified  in  the  said  schedule;  and  that  the 
work  and  the  several  parts  and  parcels  thereof,  shall  be  executed, 
finished  and  ready  for  use  and  occupation,  and  be  delivered  over,  so 
finished  and  ready,"  at  a  day  fixed.  Jones  built  the  house  accord- 
ing to  the  specifications,  except  in  so  far  as  Miss  Dermott  had  com- 


376  CONTRACTS   FOR  WORK. 

pelled  him — according  to  his  account  of  things — to  deviate  from 
them.  Owing,  however,  to  a  latent  defect  in  the  soil,  the  founda- 
tion sank,  the  building  became  badly  cracked,  uninhabitable,  and  so 
dangerous  to  passers-by,  that  Miss  Dermott  was  compelled  to  take  it 
down,  to  renew  the  foundation  with  artificial  "floats,"  and  to  rebuild 
that  part  of  the  structure  which  had  given  way.  This  she  did  at  a 
large  expense.  As  finished  on  the  artificial  foundations,  the  build- 
ing was  perfect. 

Jones  having  sued  Miss  Dermott,  in  the  Federal  Court  for  the 
District  of  Columbia,  for  the  price  of  building,  her  counsel  asked 
the  court  to  charge  that  she  was  entitled  to  "  recoup  "  the  amount 
which  it  was  necessary  for  her  to  expend  in  order  to  render  the 
cracked  part  of  the  house  fit  for  use  and  occupation  according  to 
the  plan  and  specifications ;  an  instruction  which  the  court  refused 
to  give.  The  court  considered,  apparently,  that  even  under  the  cov- 
enant made  by  Jones,  and  above  recited,  he  was  not  responsible  for 
injury  resulting  from  inherent  defects  in  the  ground,  the  same  hav- 
ing been  Miss  Dermott's  own ;  and  judgment  went  accordingly. 
Error  was  taken  here.  Some  other  questions  were  presented  in  the 
course  of  the  trial  below,  and  referred  to  here  ;  as,  for  example,  how 
far,  when  a  special  contract  has  been  made,  a  plaintiff  must  sue  upon 
it  ? — how  far  he  may  recover  in  a  case  where,  as  was  said  to  have 
been  the  fact  here,  the  plaintiff  had  abandoned  his  work,  leaving  it 
unfinished? — how  far  "acceptance,"  when  such  acceptance  consisted 
only  in  a  party's  treating  as  her  own  a  house  built  on  her  ground, 
waives  non-fulfillment,  there  being  no  bad  faith  in  the  matter  ? — and 
some  questions  of  a  kindred  kind.  The  most  important  question  in 
the  case,  however,  was  the  refusal  of  the  court  to  charge,  as  re- 
quested, in  regard  to  the  "  recoupment ;"  and  the  correctness  of  that 
refusal  rested  upon  the  effect  of  Jones's  covenant  to  deliver,  fit  for 
use  and  occupation,  in  connectionjwith  the  latent  defect  of  soil  upon 
which  the  foundation  was  built. 

S wayne,  J.,  delivering  the  opinion  of  the  court,  held  that  the 
defendant  in  error  was  bound  to  fulfill  his  covenant,  and  was  not 
excused  by  the  latent  defect  in  the  soil  which  led  him  to  deviate 
from  the  stipulated  specifications,  and  proceeded  as  follows  :  We 
are  of  opinion  that  the  plaintiff  below  was  entitled  to  recover,  but 
that  the  court,  in  denying  to  the  defendant  the  right  of  recoupment, 
committed  an  error  which  is  fatal  to  the  judgment. 

While  a  special  contract  remains  executory,  the  plaintiff  must  sue 
upon  it.  When  it  has  been  fully  executed  according  to  its  terms, 
and  nothing  remains  to  be  done  but  the  payment  of  the  price,  he 


BLACK  v.   WOODROW  AND  RICHARDSON.  377 

may  sue  on  the  contract,  or  in  indebitatus  assumpsit,  and  rely  upon 
the  common  counts.  In  either  case  the  contract  will  determine  the 
rights  of  the  parties. 

When  he  has  been  guilty  of  fraud,  or  has  willfully  abandoned  the 
work,  leaving  it  unfinished,  he  cannot  recover  in  any  form  of  action. 
Where  he  has  in  good  faith  fulfilled,  but  not  in  the  manner  or  not 
within  the  time  prescribed  by  the  contract,  and  the  other  party  has 
sanctioned  or  accepted  the  work,  he  may  recover  upon  the  common 
counts  in  indebitatus  assumpsit. 

He  must  produce  the  contract  upon  the  trial,  and  it  will  be  ap- 
plied as  far  as  it  can  be  traced ;  but  if,  by  the  fault  of  the  defendant, 
the  cost  of  the  work  or  materials  has  been  increased,  in  so  far 
the  jury  will  be  warranted  in  departing  from  the  contract  prices. 
In  such  cases  the  defendant  is  entitled  to  recoup  for  the  damages  he 
may  have  sustained  by  the  plaintiff's  deviations  from  the  contract, 
not  induced  by  himself,  both  as  to  the  manner  and  time  of  the  per- 
formance. 

There  is  great  conflict  and  confusion  in  the  authorities  upon  this 
subject.  The  propositions  we  have  laid  down  are  reasonable  and 
just,  and  they  are  sustained  by  a  preponderance  of  the  best  consid- 
ered adjudications  (Cutter  v.  Powell,  2  Smith's  Lead.  Cas.  1,  and 
notes ;  Chitty  on  Contracts,  612,  and  notes). 

Judgment  reversed,  and  the  cause  remanded  for  further  proceed- 
ings in  conformity  with  this  opinion. 


Pleading  ;  Bill  of  Particulars  ;  Implied  Obligation  in  Contract  ; 
Incomplete  Performance  ;  Stoppage  of  Work  by  Defendant. 


COURT  OF  APPEALS,  MARYLAND. 

[1873.]    Black  v.  Woodrow  and  Eichardson  (39  Mil.  194). 

As  a  general  rule,  a  bill  of  particulars,  unless  restricted  to  some  particular  count,  applies 
to  all  the  counts  of  a  declaration,  if  they  be  of  a  character  to  require  such  aid  in  or- 
der to  notify  the  defendant  of  the  nature  and  extent  of  the  plaintiff's  claim. 

Where  a  count  furnishes  sufficient  notice  of  the  nature  of  the  plaintiff's  claim,  and  of  the 
evidence  required  to  support  it,  a  bill  of  particulars  is  not  demandable. 

Where  a  contract,  on  its  face,  appears  to  be  obligatory  upon  one  party  only,  but  it  is 
manifest  that  it  was  the  intention  of  the  parties  and  the  consideration  upon  which 
the  one  party  assumed  an  express  obligation,  that  there  should  be  a  corresponding 
and  correlative  obligation  on  the  other  party,  such  obligation  will  be  implied. 


378  CONTRACTS   FOR  WORK. 

In  an  action  for  damages,  the  plaintiffs  alleged  in  the  fifth  count  of  their  declaration — 
the  first  four  counts  having  been  stricken  out  by  consent — that  they  had  agreed  with 
the  defendant  to  build  him  a  house,  for  which  he  agreed  to  pay  them  a  certain  price; 
that,  in  pursuance  of  said  agreement,  they  began  to  build  the  house,  and  were  ready 
and  willing  to  complete  it,  but  that  the  defendant  prohibited  and  forcibly  prevented 
them  from  so  doing,  and  compelled  them  to  desist  from  the  work.  The  sixth  count 
set  forth  the  contract  and  the  work  done  under  it  by  the  plaintiffs  in  detail,  and  al- 
leged that  the  plaintiffs  were  then  and  there  ready,  willing,  and  anxious  to  comply 
with  the  contract  in  every  particular,  but  were  prevented  from  so  doing  by  the  de- 
fendant. Verdict  being  for  the  plaintiffs,  upon  an  appeal  from  an  order  overruling 
a  motion  in  arrest  of  judgment,  Held: 

1st.  That  from  this  contract  an  obligation  by  the  defendant  to  suffer  the  house  to  be  built 
was  implied. 

2d.  That  though  the  defendant  had  the  right  to  stop  work  on  the  building,  yet,  by  so 
doing,  he  committed  a  breach  of  contract,  and  incurred  a  liability  to  pay  the  damages 
that  might  result  therefrom. 

3d.  That  the  damages  in  such  case  would  include  compensation  for  the  labor  done  and 
materials  furnished,  and  such  further  sum  as  might,  by  legal  principles,  be  assessed 
for  the  breach  of  the  contract. 

4th.  That  though  the  declaration  omitted  in  terms  to  aver  the  implied  promise  of  the  de- 
fendant, and  was  not  very  technical  in  stating  the  breach  thereof,  yet  the  fact  of 
prevention  was  alleged  as  the  breach,  and  this  was  sufficient ;  especially  after  ver- 
dict, which  is  aided  by  intendment. 

Appeal  from  the  Superior  Court  of  Baltimore  city,  to  the  Court 
of  Appeals  of  Maryland. 

The  facts  are  stated  in  the  opinion  of  the  court. 

The  nature  of  the  various  exceptions  taken  at  the  trial,  and  of 
the  points  of  counsel  on  the  argument  of  the  appeal,  also  sufficiently 
appear  in  the  opinion. 

Alvey,  J.,  delivered  the  opinion  of  the  court. 

In  this  case,  Woodrow  and  Richardson  sued  Black  on  a  contract 
for  the  building  of  a  house  by  the  former  for  the  latter.  The  dec- 
laration, as  originally  filed,  contained  six  counts  ;  the  first  four  being 
common  counts,  for  work  and  labor,  for  materials  provided,  for 
money  paid,  laid  out  and  expended,  and  for  goods  bargained  and 
sold ;  and  the  two  remaining  counts  being  framed  on  the  special 
agreement.  By  the  first  of  these  special  counts,  it  is  alleged  that 
the  appellees,  the  plaintiffs  below,  agreed  with  the  appellant  to  build 
him  a  house  on  his  farm,  for  which  the  latter  agreed  to  pay  to  the 
former  six  thousand  dollars ;  and  that,  in  pursuance  of  the  agree- 
ment, appellees  commenced  to  build  the  house,  and  expended  large 
sums  of  money  thereon,  and  that  they  were  ready  and  willing  to 
comply  with  their  contract,  and  complete  the  house  in  accordance 
therewith,  but  that  the  appellant  prohibited  and  forcibly  prevented 
them  from  so  doing,  and  compelled  them,  at  great  expense,  to  take 
away  the  materials  by  them  provided  for  the  building  of  such  house ; 


BLACK   v.    WOODROW  AXD  RICHARDSON.  379 

and  that  the  appellant  refused,  and  still  refuses,  to  pay  the  appellees 
for  the  work  and  materials  provided,  to  their  damage  of  six  thousand 
dollars. 

By  the  second  special  count,  being  the  sixth  count  in  the  declara- 
tion as  originally  filed,  it  is  alleged  that  the  appellees  and  appellant 
agreed  together  that  the  former  would  build  for  the  latter  a  frame 
house  on  his  farm,  in  the  manner  and  according  to  the  specifications 
stated  and  set  forth,  and  that  the  appellees,  in  pursuance  of  the  con- 
tract, commenced  and  progressed  in  the  work  of  erecting  such  house, 
and  expended  large  amounts  of  money  in  providing  materials  there- 
for ;  and  although  the  appellees  were  then  and  there  ready  and  will- 
ing and  anxious  to  comply  with  the  contract  in  every  particular,  and 
to  build  the  house  in  every  respect  in  exact  accordance  with  the  con- 
tract, they  were  prevented  from  so  doing  by  the  express  orders  of 
the  appellant,  whereby  they  sustained  damage  to  the  amount  of  six 
thousand  dollars. 

The  four  common  counts  were  stricken  out  by  consent  after  the 
jury  were  sworn ;  and  to  the  two  special  counts  the  appellant 
pleaded  that  he  did  not  commit  the  wrong  alleged ;  a  plea  wholly 
inappropriate  to  this  action,  but,  as  no  objection  was  taken  to  it  in 
the  court  below,  we  must,  to  give  it  any  effect  at  all,  suppose  that  it 
was  intended  to  traverse  the  breaches  assigned  in  the  two  counts  to 
which  it  was  pleaded. 

In  the  course  of  the  trial  in  the  court  below  three  bills  of  excep- 
tion were  taken  by  the  appellant ;  two  of  them  to  rulings  upon 
questions  of  evidence,  and  the  third  to  rulings  in  respect  to  the  pray- 
ers offered  by  the  appellant.  The  verdict  being  against  the  appel- 
lant, he  also  moved  in  arrest  of  judgment,  and  assigned  as  reasons 
for  the  motion  :  1st,  that  the  amount  of  the  verdict  exceeded  the 
amount  claimed  by  the  bill  of  particulars ;  2dly,  that  the  declaration 
failed  to  allege  a  tender  or  offer  of  performance,  or  a  sufficient  ex- 
cuse for  non-performance  of  the  contract  by  the  appellees;  and. 
3dly,  that  the  declaration  was,  in  other  respects,  defective  and  in- 
sufficient. 

This  motion  in  arrest,  going  as  it  does  to  the  right  of  the  ap- 
pellees to  maintain  the  action  on  the  present  declaration,  will  be  first 
considered. 

And  first,  as  to  the  amount  of  the  verdict  being  in  excess  of  the 
amount  claimed  by  the  particulars  of  demand.  It  is  clear,  we  think, 
that  the  motion  in  arrest  cannot  be  sustained  on  this  ground.  The 
bill  of  particulars  makes  no  reference  to  any  particular  count  in  the 
declaration ;  and  it  was  filed  when  the   declaration  embraced  the 


3S0  CONTRACTS   FOR  WORK". 

common  counts  which  were  afterwards  stricken  out.  It  does  not 
appear  to  have  been  the  intention  of  either  the  appellant  in  demand- 
ing the  bill  of  particulars,  or  the  appellees  in  filing  it,  to  make  it  ex- 
tend to  any  count  in  the  declaration  to  which  it  was  not  reasonably 
and  properly  applicable.  As  a  general  rule,  a  bill  of  particulars,  un- 
less restricted  to  some  particular  count,  applies  to  all  the  counts  of  a 
declaration,  if  they  be  of  a  character  to  require  such  aid  in  order  to 
notify  the  defendant  of  the  nature  and  extent  of  the  plaintiff's  claim. 
Such  were  the  cases  of  Carter  v.  Tuck  (3  Gill,  250),  and  Scott  v. 
Leary  (34  Md.  389).  In  both  those  cases  the  declaration  contained 
only  the  common  counts  in  assumpsit  and  where  the  particulars  were 
properly  demandable  with  reference  to  them  all.  But  it  is  only 
"  where  the  pleading  is  so  general  as  not  to  give  sufficient  notice  to 
the  opposite  party  of  the  evidence  to  be  offered  in  support  of  it," 
that  a  bill  of  particulars  can  be  required  (Code,  art.  75,  sec.  22,  sub- 
sec.  107).  This  criterion  prescribed  by  the  Code  is  but  the  expres- 
sion of  the  previous  rule  of  practice.  In  cases  where  the  declaration 
is  special,  and  discloses  the  nature  and  extent  of  the  demand,  as  in 
cases  of  counts  upon  promissory  notes  or  bills  of  exchange,  there  is 
no  right  in  the  defendant  to  require  greater  particularity  than  the 
count  affords.  In  this  case,  the  bill  of  particulars  was  proper  in  ref- 
erence to  the  common  counts,  and  perhaps  to  the  fifth  count,  as 
that  count  goes  only  for  the  work  and  labor,  and  materials  furnished 
under  the  contract.  But  as  to  the  sixth  count,  the  particulars  were 
unnecessary,  and  were  not  demandable,  as  the  count  itself  was  special, 
setting  out  fully  the  contract,  and  alleging  as  a  breach  the  appel- 
lant's prevention  of  performance  of  the  contract  by  the  appellees, 
and  the  consequent  damage  sustained  by  them.  The  count,  there- 
fore, furnished  sufficient  notice  of  the  nature  and  character  of  the 
claim,  and  of  the  evidence  required  to  support  it.  This  is  all  that  a 
defendant  has  a  right  to  demand,  in  regard  to  the  certainty  of  the 
plaintiff's  claim. 

Wherever,  says  Mr.  Tidd  (Pr.  597),  the  particulars  of  the  de- 
mand are  disclosed  in  the  declaration,  as  in  special  assumpsit,  cove- 
nant or  debt  on  articles  of  agreement,  &c,  or  in  actions  on  matters 
of  record,  an  order  to  furnish  particulars  is  unnecessary.  And  it  has 
been  expressly  decided  that  the  court  will  not  compel  a  plaintiff 
suing  for  the  breach  of  an  agreement,  and  assigning  by  way  of 
special  damage  that  he  has  incurred  certain  expenses,  to  furnish  par- 
ticulars of  such  special  damage  (Retallick  v.  Hawkes,  1M.  &  W. 
573  ;  see  also  Fisher  v.  Wainwright,  1  M.  &  W.  480  ;  Stannard  v. 
Ullithorne,  3  Bing.  K  C.  326,  and  Day  v.  Davies,  5  C.  &  P.  340). 


BLACK   v.   WOODROW  AND  RICHARDSON.  331 

And  Mr.  Evans,  in  his  Maryland  Practice  (p.  256),  states  the  rule  to 
be,  that  "  where  the  declaration  sufficiently  discloses  the  particulars 
intended  to  be  relied  on,  a  bill  of  particulars  is  not  necessary  or  al- 
lowed. And  if  a  bill  of  particulars  be  actually  given,  it  will  produce 
no  effect ;  but  the  party  may  still  prove  anything  which  he  might 
have  proved,  had  there  been  no  bill  of  particulars." 

It  follows,  therefore,  as  the  sixth  count  was  of  a  character  not  to 
require  the  aid  of  a  bill  of  particulars,  and  the  bill  of  particulars  fur- 
nished not  professing  to  apply  to  it,  the  appellees'  right  to  recover 
under  this  count  was  in  no  manner  restricted  by  such  particulars, 
and  consequently,  the  first  ground  for  the  motion  in  arrest  fails,  even 
if  such  question  could,  in  any  case,  be  properly  raised  on  such  mo- 
tion ;  a  technical  question  that  we  do  not  now  decide. 

Then,  as  to  the  second  and  third  grounds  for  the  motion,  namely, 
that  there  is  no  sufficient  allegation  of  tender  or  offer  of  perform- 
ance, or  of  excuse  for  non-performance  of  the  contract,  by  the  ap- 
pellees, and  that  the  declaration  is  in  other  respects  insufficient. 

By  the  fifth  count  in  the  de'claration,  it  is  alleged,  as  we  have 
seen,  that  the  appellees  were  ready  and  willing  to  comply  with  the 
contract,  and  to  complete  the  house,  but  that  the  appellant  pro- 
hibited and  forcibly  prevented  them  from  so  doing,  and  compelled 
them  to  desist  from  the  work  ;  and,  by  the  sixth  count,  it  is  alleged 
that  the  appellees  were  then  and  there  ready,  and  willing,  and  anx- 
ious, to  comply  with  the  contract  in  every  particular,  but  that  they 
were  prevented  from  so  doing  by  the  appellant. 

Now,  it  is  certainly  clear  that  the  appellant,  by  preventing  the 
appellees  from  performing  their  part  of  the  contract,  committed  a 
breach  of  it,  for  which  he  is  liable.  It  is  said,  however,  that  the 
contract  is  silent  as  to  any  promise  by  the  appellant  to  suffer  or  al- 
low the  house  to  be  built ;  and  that  his  only  express  promise  was  to 
pay  the  price  agreed  on,  part  while  the  house  was  in  course  of  erec- 
tion, and  the  balance  after  its  completion  according  to  contract ;  and, 
that  as  the  appellant  could  elect  to  have  the  house  built  or  not,  as  he 
thought  proper,  and  having  elected  not  to  have  it  built,  the  con- 
dition alone  upon  which  the  appellees  could  sue  upon  the  contract 
as  subsisting  has  never  been  performed  by  them,  namely,  the  erec- 
tion of  the  house  according  to  the  contract,  and,  consequently,  there 
has  been  no  such  breach  assigned  as  entitled  them  to  recover  on  the 
contract,  whatever  might  be  their  right  to  recover  in  general  indebi- 
tatus assumpsit.,  as  for  work  and  labor  done  and  materials  furnished. 
That  the  only  breach  for  which  the  appellant  can  be  liable  on  the 
contract  itself,  as  he  contends,  is  the  non-payment  of  the  agreed  price 


3S2  CONTRACTS   FOR  WORK. 

for  the  building  of  the  house,  and  as  the  house  has  not  been  built, 
the  declaration  shows  no  such  breach  of  the  contract  on  the  part  of 
the  appellant  as  will  render  him  liable  to  the  appellees  in  this  action. 

With  respect  to  the  proposition  that  the  appellant  was  not  bound 
to  have  the  house  built,  it  is  certainly  true,  that  the  appellees  could 
not  persist  in  building  the  house  against  the  consent  of  the  appel- 
lant, and  in  defiance  of  his  express  order  to  desist ;  but  with  re- 
spect to  the  other  proposition,  that  there  was  no  promise  of  the  ap- 
pellant to  allow  it  to  be  built  according  to  the  contract,  and  that 
consequently,  his  prevention  constituted  no  breach,  that  cannot  for  a 
moment  be  conceded. 

It  not  unfrequently  occurs,  that  contracts  on  their  face  and  by 
their  express  terms  appear  to  be  obligatory  on  one  party  only  ;  but 
in  such  cases,  if  it  be  manifest  that  it  was  the  intention  of  the  par- 
ties, and  the  consideration  upon  which  one  party  assumed  an  express 
obligation,  that  there  should  be  a  corresponding  and  correlative  obli- 
gation on  the  other  party,  such  corresponding  and  correlative  obliga- 
tion will  be  implied.  Thus,  if  the  act  to  be  done  by  the  party  bind- 
ing himself  can  only  be  done  upon  a  corresponding  act  being  done  or 
allowed  by  the  other  party,  an  obligation  by  the  latter  to  do  or  al- 
low to  be  done  the  act  or  things  necessary  for  the  completion  of  the 
contract  will  be  necessarily  implied  (Churchward  v.  The  Queen,  6 
B.  &  S.  807).  And  among  the  instances  given  of  such  implied  obli- 
gation, is  the  case  where  A.  covenants  or  contracts  with  B.  to  buy 
an  estate  of  the  latter,  at  a  given  price,  there,  although  the  contract 
may  be  silent  as  to  any  obligation  on  the  part  of  B.  to  sell,  the  law 
implies  a  corresponding  covenant  or  contract  by  him  to  sell  and  con- 
vey the  estate  (Pordage  v.  Cole,  1  Wins.  Saund.  319).  Indeed,  no 
better  instance  of  the  proper  application  of  the  principle  could  be 
furnished  than  the  present  case*  The  appellees  agreed  with  the  ap- 
pellant to  build  for  the  latter  a  house  on  his  land  for  a  certain  price, 
part  to  be  paid  while  the  house  was  in  course  of  erection,  but  the 
larger  part  of  the  price  was  not  to  be  paid  until  the  house  was  com- 
pleted ;  and  although  the  appellant  could  not  be  compelled  to  have 
the  house  built  against  his  consent,  yet,  notwithstanding  the  contract 
is  silent  as  to  the  appellant's  promise  that  he  would  suffer  the  house 
to  be  built,  the  agreement  with  the  appellees  for  the  building  of  the 
house  clearly  implies  that  he  would  allow  that  to  be  done,  without 
which  it  would  be  impossible  for  the  appellees  to  do  what  they  had 
agreed  to  do. 

To  allow  or  suffer  the  house  to  be  built  was  the  corresponding  or 
correlative  obligation  of  the  appellant,  implied  by  law,  to  the  obli- 


BLACK  v.   WOODROW  AKD  RICHARDSON.  383 

gation  of  the  appellees  to  build  the  house,  as  expressed  by  the  con- 
tract ;  and  for  any  breach  of  this  implied  promise  or  obligation  by 
the  appellant,  he  ia  equally  liable  as  upon  an  express  promise.  The 
only  question  is,  whether  a  sufficient  breach  of  this  implied  obliga- 
tion has  been  properly  assigned  in  the  declaration  before  us. 

In  the  case  of  Cort  &  Gee  v.  The  Ambergate,  &c.  R.  Co.  (17 
Adolph.  &  Ell.  N.  S.  127),  where  there  was  a  contract  for  the  manu- 
facture and  supply  of  a  certain  quantity  of  railway  chairs  by  the 
plaintiffs  for  the  defendants,  to  be  paid  for  after  delivery,  and  the 
defendants,  having  accepted  and  paid  for  a  portion  of  the  chairs, 
gave  notice  to  the  plaintiffs  not  to  manufacture  any  more,  as  they, 
the  defendants,  had  no  occasion  for  them,  and  would  not  accept  or 
pay  for  them  ;  in  an  action  upon  the  contract,  it  was  held,  that,  as 
the  plaintiffs  were  desirous  and  able  to  complete  the  contract,  they 
could,  without  manufacturing  and  tendering  the  rest  of  the  chairs, 
maintain  an  action  against  the  defendants  for  a  breach  of  the  con- 
tract. It  was  also  held,  that  the  simple  notice  by  the  defendants  to 
the  plaintiffs  that  the  latter  should  not  go  on  to  supply  the  rest  of 
the  chairs,  entitled  the  plaintiffs  to  recover,  on  a  count  alleging  that 
they  were  ready  and  willing  to  perform  the  contract,  and  that  the 
defendants  refused  to  accept  the  residue  of  the  chairs,  and  prevented 
and  discharged  the  plaintiffs  from  the  further  execution  of  the  con- 
tract ;  that  such  notice  by  the  defendants  was  a  legal  prevention, 
though  there  was  no  other  act  of  obstruction.  So  in  the  case  of 
Derby  et  al.  v.  Johnson  et  al.  (21  Vt.  17).  There  the  plaintiffs  and 
defendants  entered  into  a  written  contract,  by  which  the  former  en- 
gaged to  do  all  the  stone  work,  masonry  and  blasting  upon  a  certain 
piece  of  railroad,  at  certain  specified  prices  by  the  cubic  yard.  The 
plaintiffs  entered  upon  the  performance  of  the  contract,  and  while 
they  were  so  engaged,  the  defendants  gave  them  direction  to  quit 
the  work,  and  to  do  nothing  more  under  the  contract ;  and  the 
plaintiffs  having  quit  the  work  as  directed,  it  was  held  to  be  no  re- 
linquishment of  the  contract  on  their  part ;  but  that  the  defendants, 
in  giving  the  notice  and  stopping  the  work  were  in  the  exercise  of  a 
right  that  belonged  to  them,  leaving  themselves  liable,  of  course,  for 
all  consequences  resulting  from  their  breach  of  the  contract.  The 
same  principle  was  very  fully  stated  and  adopted  in  the  case  of  Clark 
v.  Marsiglia  (1  Denio,  317). 

ISTow,  in  the  case  before  us,  according  to  the  averments  of  the 
declaration,  the  appellees  were  notified  and  directed  by  the  appellant 
to  desist  from  the  further  prosecution  of  the  work  contracted  to  be 
done  by  them,  and  were  thus  prevented  from  performing  their  part 


384  UNAUTHORIZED  CONTRACTS. 

of  the  contract ;  and  though  the  appellant  had  a  right  thus  to  stop 
the  work  on  the  building,  yet,  by  so  doing,  he  committed  a  breach  of 
the  contract,  and  thereby  incurred  a  liability  to  pay  the  damages  that 
might  result  therefrom.  And  the  damages  in  such  case  would  in- 
clude compensation  for  the  labor  done  and  materials  furnished,  and 
such  further  sum  in  damages  as  might,  upon  legal  principles,  be  as- 
sessed for  the  breach  of  the  contract  (1  Denio,  31 7 ;  Phil.  "Wil.  & 
Balto.  R.  Co.  v.  Howard,  13  How.  307,  344).  And  although  the 
declaration  omits  in  terms  to  aver  the  implied  promise  on  the  part  of 
the  appellant  to  allow  or  suffer  the  house  to  be  built,  but  sets  out  in 
the  sixth  count  the  contract  in  full,  and  is  not  very  formal  or  tech- 
nical in  stating  the  breach  of  such  implied  promise,  still  the  fact  of 
prevention  is  alleged  as  the  breach,  and  that-  is  sufficient,  especially 
after  verdict,  which  is  aided  by  intendment  (1  Chit.  Plead.  337). 

Discovering  no  sufficient  defect  in  the  declaration  to  defeat  the 
verdict  in  this  case,  we  are  of  opinion  that  the  motion  in  arrest  of 
judgment  was  properly  overruled  by  the  court  below. 

[The  learned  court  then  passed  on  questions  of  evidence,  and  of 
the  construction  of  the  contract.  This  part  of  the  opinion  not  being 
material  to  the  rules  of  damages,  is  here  omitted.] 

Finding  no  error,  we  shall  affirm  the  judgment. 

Judgment  affirmed. 


UNAUTHORIZED   CONTRACTS. 

Contract  without  Authority  ;  Extent  of  Damages  for  Breach  of 
Implied  "Warranty  of  Authority  ;  Costs  of  Litigation  under- 
taken in  consequence  of  the  Warranty. 


COURT   OF    QUEEN  S    BENCH. 

[1864.]         Hughes  v.  Graeme  (33  L.  J.  K  S.  Q.  B.  335). 

The  defendant,  acting  as  broker  for  both  buyer  and  sellers,  made  a  contract  for  the  sale 
of  some  wool  on  certain  terms.  The  sellers  afterwards  repudiated  the  contract,  al- 
leo-ino-  (as  was  tile  fact)  that  they  had  not  authorized  the  defendant  to  sell  on  those 
terms.  The  wool  had  been  imported  from  California,  and  could  therefore  have  been 
exported  to  America  free  of  duty,  and  there  was  no  other  wool  similarly  circum- 
stanced in  the  market.  The  defendant  persisting  that  he  had  authority,  the  buyer 
filed  a  bill  in  chancery  for  specific  performance  against  the  sellers,  and  obtained  an 
interim  injunction;  the  bill  was  dismissed  and  the  injunction  dissolved,  with  costs, 
on  the  ground  of  the  want  of  authority  in  the  defendant.  In  an  action  by  the  buyer 
against  the  defendant  for  the  breach  of  his  promise  that  he  had  authority: 


HUGHES   v.   GRAEME.  3S5 

Held,  that  the  plaintiff  could  maintain  the  action,  although  the  defendant  was  his  a°-ent, 
as  well  as  of  the  sellers;  that  the  chancery  suit  was  a  reasonable  course  to  adopt; 
and  that  the  plaintiff  was  entitled  to  recover,  as  damages,  the  taxed  costs  of  the 
chancery  suit  and  the  plaintiff's  own  costs  taxed  as  between  solicitor  and  client;  and 
also  the  difference  between  the  contract  price  of  the  wool  and  the  value  of  that  or 
similar  wool,  taking  into  account  that  it  could  have  been  exported  duty  free  to 
America,  and  all  the  mercantile  circumstances  affecting  the  value. 

At  the  trial,  at  the  sittings  at  "Westminster  after  Michaelmas 
Term,  1862,  before  Cockburn,  C.  J.,  it  appeared  that  the  plaintiff 
was  a  wool  merchant  in  Liverpool  and  London,  and  that  the  defend- 
ants were  wool  brokers  at  the  former  jilace.  They  had  had  dealings 
together,  and  about  November,  1861,  the  defendants,  understanding 
from  one  Foulkes  that  he  was  in  a  position  to  act  for  Messrs.  Lloyd 
&  Co.,  informed  the  plaintiff  that  there  was  some  California  wool  on 
board  of  four  ships  which  was  the  property  of  Messrs.  Lloyd  &  Co., 
and  that  they  had  authorized  them  (the  defendants)  to  sell  it  for 
them.  Samples  were  shown  ;  and  on  the  14th  of  November  a  con- 
tract note  was  drawn  up  and  signed  by  the  defendants  for  the  sale 
of  the  wool  by  Lloyd  &  Co.  to  the  plaintiff,  on  certain  conditions, 
and  at  a  certain  price.  Lloyd  &  Co.  afterwards  repudiated  the  con- 
tract, alleging  that  they  had  given  no  authority  to  the  defendants  to 
sell  for  them  on  such  conditions ;  but  when  the  cargoes  arrived  in 
England,  they  offered  to  sell  them  to  the  plaintiff  upon  other  terms, 
which  he  would  not  accede  to.  The  plaintiff  subsequently  filed  a 
bill  in  chancery  to  enforce  the  performance  of  the  contract,  and  ob- 
tained an  interim  injunction  (on  the  terms  alleged  in  the  first  count) 
to  restrain  the  sale  of  the  wool.  In  support  of  the  plaintiff's  case 
both  defendants  made  affidavits  adhering  to  the  statement  of  their 
authority.  This  bill  was  dismissed,  with  costs,  and  the  interim  in- 
junction was  dissolved,  on  the  ground  that,  in  the  opinion  of  Wood, 
V.  C,  the  authority  alleged  by  the  plaintiff  to  have  been  in  the 
present  defendants  to  bind  Lloyd  &  Co.  was  not  established. 

The  present  action  was  then  commenced,  the  plaintiff  claiming 
as  damages  all  the  costs  and  damages  incident  to  the  chancery  suit, 
and  also  the  amount  of  loss  sustained  by  the  plaintiff  by  reason  of 
the  loss  of  the  contract.  The  wool  in  question  was  of  a  special 
value  by  reason  of  its  having  been  imported  from  California,  so  that 
it  could  be  exported  to  America  duty  free,  and  would  fetcli  such  a 
price  there  as  would  have  made  the  contract  a  very  remunerative 
one  to  the  plaintiff.  There  was  no  wool  in  the  English  markets 
under  the  like  conditions  at  the  time.  The  plaintiff  had  intended, 
while  making  the  contract,  to  export  it  to  America,  and  thus  to  avail 
himself  of  its  special  character. 


386  UNAUTHORIZED   CONTRACTS. 

The  jury  found  that  the  defendants  acted  as  agents  of  Lloyds  as 
well  as  of  the  plaintiff,  but  were  not  authorized,  in  fact,  to  contract 
for  Messrs.  Lloyd  on  the  terms  they  had  made  with  the  plaintiff ; 
and  that  the  plaintiff  did  not  know  the  circumstances  under  which 
the  defendants  assumed  to  act  for  Lloyds. 

A  verdict  was  entered  for  the  plaintiff  for  370Z.  ;  being  the 
amount  of  taxed  costs,  110/.,  and  damages,  GO/.,  actually  paid  by  the 
plaintiff  to  the  defendants  in  the  chancery  suit,  and  200/.,  the 
amount  of  the  bill,  untaxed,  of  the  plaintiff's  solicitor  for  his  own 
costs.  Leave  was  reserved  to  the  plaintiff  to  move  to  increase  it  by 
the  amount  of  damages,  to  be  stated  by  an  arbitrator,  for  breach  of 
the  contract ;  and  leave  to  the  defendants  to  move  to  enter  a  non- 
suit, on  the  ground  of  the  defendants  not  being  liable  at  all,  or  to 
reduce  the  damages  by  the  amount  of  the  costs  of  the  chancery  suit, 
or  by  the  amount  taken  off  on  taxation  as  between  solicitor  and 
client. 

J.  D.  Coleridge  (Hilary  Term,  Jan.  11)  moved  accordingly. — 
First,  as  the  defendants  were  acting  as  the  brokers  or  agents  of  the 
plaintiff,  the  action  cannot  be  maintained,  as  the  knowledge  of  the 
agent  mnst  be  the  knowledge  of  the  principal.  Secondly,  the  chan- 
cery suit  was  not  the  proper  remedy  for  the  plaintiff  to  have  taken, 
but  an  action  at  law ;  and  the  defendants  were  not  liable  for  any 
of  the  costs  of  that  suit.  Collen  v.  Wright  (7  El.  &  B.  301 ;  s.  c.  26 
Law  J.  Eep.  K  S.  Q.  B.  117 ;  s.  c.  in  error,  8  El.  &  B.  617 ;  27  Law 
J.  Rep.  ]ST.  S.  Q.  B.  215)  is  distinguishable,  for  there  the  chancery 
suit  was  the  appropriate  remedy,  the  supposed  contract  relating  to 
land.  Bow  v.  Davis  (1  B.  &  S.  220  ;  s.  c.  30  Law  J.  Rep.  K  S.  Q. 
B.  257)  is  an  authority  for  the  defendants. 

[Blackburn,  J. — No  doubt,  as  a  general  rule,  equity  will  not  en- 
force the  specific  performance  of  a  contract  relating  to  chattels ;  but 
where  there  are  peculiar  circumstances  like  the  present — the  wool 
having  advantages  peculiar  to  itself — a  decree  for  specific  perform- 
ance is  the  only  adequate  remedy,  and  equity  would  interfere  (see  1 
Mad.  Ch.  Br.  515 ;  Story's  Eq.  Jur.  §§  717-720 ;  Buxton  v.  Lister,  3 
Atk.  383,  3S5 ;  Claringbould  v.  Curtis,  21  Law  J.  Rep.  K  S.  Chanc. 
511)  ;  and  I  do  not  understand  that  the  vice  chancellor  dismissed  the 
bill  on  any  such  technical  ground,  but  on  the  broad  ground  that  the 
authority  of  the  present  defendants  to  bind  Lloyds  was  not  made 
out.] 

At  all  events,  the  defendants  can  only  be  liable  to  pay  the  amount 
of  the-  plaintiff's  own  costs  after  taxation. 

Cockbuen,  C.  J. — I  think  there  should  be  no  rule,  except  upon 


HUGHES   v.   GRAEME.  387 

the  last  point — namely,  with  a  view  to  the  taxation  of  the  costs.  I 
think  that  the  other  points  made  by  Mr.  Coleridge  may  be  disposed 
of  very  shortly.  The  defendant  Graeme,  the  broker,  was  the  agent 
for  the  plaintiff  Hughes,  who  was  led  into  making  this  contract  by 
the  representation  of  Graeme  that  he  had  authority  from  his  sellers, 
Lloyds ;  and  Mr.  Coleridge  contended  that  because  he  was  the 
plaintiff's  agent,  therefore  hia  knowledge  of  the  true  state  of  the 
facts  must  be  taken  to  be  the  knowledge  of  the  principal,  and  that 
therefore  Mr.  Hughes  must  be  taken  to  have  known  that  Graeme 
had  not  the  authority  of  the  sellers. 

Now,  although  for  many  purposes  the  knowledge  of  the  agent 
must  be  taken  to  be  the  knowledge  of  the  principal,  yet  when  it 
comes  to  the  question  whether  the  agent  has  misled  the  principal  by 
a  representation  which  was  not  according  to  the  fact,  it  seems  to  me 
to  be  quite  monstrous  to  say  that  that  which  was  falsely  represented 
by  the  agent  to  the  principal,  must  be  taken  to  have  been  known  to 
the  principal  to  be  false,  because,  in  point  of  fact,  it  was  false.  If 
the  complaint  in  the  action  is  that  the  representation  of  authority 
made  by  the  agent  to  the  principal  was  false,  such  a  proposition  as 
that  would  defeat  entirely  the  principle  of  law  that  the  agent  is 
responsible  to  the  party  to  whom  he  makes  that  representation ;  and 
if,  where  the  agent  is  the  agent  of  both  parties,  it  is  to  be  taken 
that  when  that  representation  is  false  in  fact,  nevertheless  the  false- 
hood must  be  taken  to  have  been  known  to  the  party  who  received 
it,  I  think  it  would  be  defeating  the  wholesome  rule  of  law  appli- 
cable to  such  cases,  where  the  authority  is  wrongly  assumed.  I  do 
not  think  that  position  can  be  maintained  for  a  moment. 

The  important  question,  as  the  case  now  stands,  is,  whether  the 
defendant  Graeme  is  liable  in  respect  of  the  costs  of  the  proceedings 
in  equity  ;  and  I  must  say  I  think  he  is,  and  for  this  reason — that, 
under  the  circumstances,  we  are  satisfied  that  the  suit  in  equity  was 
a  reasonable  course  of  proceeding  to  be  adopted  by  Mr.  Hughes, 
upon  the  sellers,  Lloyds,  refusing  to  complete  the  contract.  Hughes 
had  been  induced  to  enter  into  this  contract  upon  the  representation 
of  Graeme  that  he  had  authority  to  complete  it  on  the  part  of 
Lloyds,  the  sellers  ;  and  the  contract  being  signed  on  behalf  of  both 
parties,  Lloyds  reject  the  contract,  upon  the  ground  that  the  terms 
are  inconsistent  with  those  which  they  had  prescribed  to  their  agent, 
as  the  only  tenns  upon  which  they  were  prepared  to  deal.  Upon 
that  Hughes  says,  "  I  am  entitled  to  enforce  this  contract.  It  will 
not  answer  my  purpose  to  proceed  at  law,  because  what  I  want  is 
the  delivery  of  these  specific  wools  ;  no  other  will  suit  the  purpose 


38S  UNAUTHORIZED   CONTRACTS. 

for  which  I  entered  into -this  contract."  The  only  mode  in  which 
he  could  ohtain  the  specific  performance  of  the  contract  was  by  go- 
ing to  chancery,  and  instituting  a  suit  for  that  purpose.  He  does 
institute  a  suit  for  that  purpose,  with  the  incidental  further  purpose 
of  obtaining  an  injunction  to  prevent  the  sale  of  the  wools,  pend- 
ing the  dispute  between  the  parties.  Upon  the  hearing  in  chancery 
it  appeared  that  Lloyds,  the  sellers,  denied  the  authority  of  the 
agents  to  conclude  the  contract  upon  the  terms  on  which  it  had  been 
concluded,  and  they  brought  evidence,  on  affidavit  before  the  vice 
chancellor,  to  show  that  there  had  been  no  authority  in  Graeme  to 
conclude  the  contract  upon  those  terms.  The  vice  chancellor  said, 
upon  this  disputed  state  of  facts,  and  the  contest  with  reference  to 
the  authority,  he  could  not  give  Mr.  Hughes  the  relief  he  sought, 
and  the  bill  was  dismissed.  That  was  not  an  unreasonable  proceed- 
ing on  the  part  of  Hughes.  We  are  in  the  position  of  a  jury  to 
determine  that  question.  Mr.  Coleridge  did  not  propose  that  that 
question  should  go  to  the  jury,  but  asked  to  have  it  reserved  for  the 
consideration  of  the  court.  We  deal  with  it  as  though  we  were  a 
jury ;  and  I  must  say  I  think  that,  under  all  the  circumstances,  it 
was  not  an  unreasonable  course  on  the  plaintiff's  part.  It  was  in 
consequence  of  Graeme  having  represented  that  he  had  authority  so 
to  sell,  that  the  plaintiff  endeavored  to  enforce  the  contract  made 
under  that  assumed  authority.  Graeme  makes  an  affidavit  in  the 
suit  with  a  view  of  enabling  Mr.  Hughes  to  enforce  his  claim  in 
■equity  against  the  sellers,  Lloyds.  In  the  whole  of  these  proceedings 
Graeme  never  for  a  moment  suggests  that  there  was  any  doubt  as  to 
the  truth  and  honesty  of  his  statement  as  to  the  authority  he  had 
from  Lloyds.  The  consequence  is,  that  acting  on  that,  Hughes,  the 
present  plaintiff,  proceeds  with  the  suit,  and  he  is  defeated.  Then 
there  is  a  loss  of  the  costs  of  that  suit,  which  LIughes  had  to  pay, 
and  that  is  a  loss  which  results  to  him  upon  the  representation  of 
Graeme  as  to  his  authority,  which  was  made  without  any  founda- 
tion in  point  of  fact.  If  the  authority  had  been  true,  upon  the 
representation  of  that  authority,  it  was  a  reasonable  course  for  Mr. 
Hughes  to  pursue,  and  he,  having  sustained  that  loss  upon  the  au- 
thority not  being  true,  the  defendants  are  liable  for  the  costs.  We 
think  there  should  be  no  rule  upon  the  above  grounds  ;  but  on  the 
minor  part  of  the  matter — namely,  that  the  costs  for  which  the  de- 
fendants are  liable  in  this  case  must  be  costs  as  taxed  in  the  proper 
course  of  taxation.  They  have  not  been  taxed.  Therefore,  so  far,  I 
am  disposed  to  grant  the  rule  to  reduce  the  damages  to  the  amount 
to  be  ascertained  on  taxation. 


HUGHES   v.   GRAEME.  389 

Cbomptox,  J. — I  am  of  the  same  opinion.     According  to  Collen 
v.  Wright,  we  must  assume,  in  this  case,  there  was  a  warranty.     It 
is  proved  there  was  a  breach  of  warranty,  for  it  was  proved  that  the 
defendants  had  not  the  authority  of  Lloyds  to  make  the  contract. 
Then,  according  to  the  same  authority,  proceedings  in  chancery  were 
reasonably  adopted  on  the  faith  of  such  a  waaranty ;  and  the  costs 
must  be  held  to  be  damages  naturally  and  approximately  flowing 
from  the  breach  of  warranty,  within  the  rule  of  what  shall  be  the 
damages  for  breach  of  a  contract  in  such  a  case.     I  take  the  rule 
to  be  that  which  has  been  referred  to :  the  defendant  must  pay  the 
costs  of  the  course  which  the  other  party  has  reasonably  adopted, 
acting  upon  the  warranty.     I  quite  agree  with  the  cases  Mr.  Cole- 
ridge cited.     The  case  in  which  the  ejectment  was  tried  by  my 
brother  Wightman  (Pow  v.  Davis)  is  not  in  point.    There  the  plaint- 
iff had  failed  in  the  ejectment  from  want  of  title  under  the  statute 
of  frauds,  and  not  from  the  breach  of  warranty ;  therefore  the  dam- 
ages did  not  flow  from  the  breach  of  warranty.     That  is  not  the 
case  here,  because  I  take  it  the  plaintiff  failed  in  chancery  by  reason 
of  its  not  being  proved  that  Graeme  had  the  authority  which  he 
warranted  he  had.     If  Mr.  Coleridge  could  have  shown  us  there  was 
no  jurisdiction  in  the  Court  of  Chancery  to  interfere  in  the  matter 
of  goods,  which  at  one  time  was  the  rule  generally  acted  upon,  I  be- 
lieve, that  might  have  led  to  a  different  result.     I  understand  that 
in  this  case,  as  was  pointed  out,  there  being  an  irremediable  mischief 
in  this  sense,  that  the  defendant  could  not  make  the  same  use  of 
other  goods  as  he  could  have  done  of  these  particular  goods,  the 
court  would  have  granted  the  relief,  at  all  events,  preventing  the 
sale  of  the  goods,  supposing  the  authority  had  been  clearly  estab- 
lished.    I  think  here  the  plaintiff,  under  the  circumstances,  had  a 
right  to  suppose — from  Graeme's  conduct  in  making  the  contract, 
and  when  he  asserted,  what    he    afterwards    reasserted  when  the 
plaintiff  instituted  these  proceedings,  and  what  he  persisted  in  by 
the  affidavit  in  the  course  of  the  proceedings — that  his  assertion 
was  true  ;  and  I  can  see  nothing  unreasonable  in  the  plaintiff  think- 
ing he  was  establishing  a  fair  case  in  equity.     And  he  would  have 
succeeded  if  he  had  made  the  authority  out,  and  if  he  had  estab- 
lished it  to  the  satisfaction  of  the  vice  chancellor,  not  leaving  it  as  a 
doubtful  case.     But  he  failed  distinctly  on  the  ground  that  he  had 
not  made  out  a  clear  case  of  the  truth  of  the  authority  having  been 
given.     I  look  upon  the  rule  as  this,  that  it  is  a  question  of  fact 
whether  the  party  has  instituted  a  suit  reasonably  under  the  circum- 
stances ;  and  I  think  that,  after  all,  the  questions  that  have  been 


390  UNAUTHORIZED   CONTRACTS. 

raised  about  notice,  and  about  bow  far  the  parties  knew,  are  all  in- 
gredients in  the  consideration  of  that  question  merely,  whether  it 
was  reasonable  or  not.  It  is  not  necessary,  in  point  of  law,  that  the 
party  should  give  notice  to  the  other  of  the  course  he  intends  to 
pursue ;  more  especially  where,  as  in  the  present  case,  the  defendant 
knew  at  the  time,  and  was  a  witness  at  all  events  in  the  case,  and  a 
party  giving  his  evidence  from  time  to  time.  Therefore  I  do  not 
think  the  want  of  notice  at  all  conclusive,  although  it  is  a  circum- 
stance generally  in  the  plaintiffs  favor  that  the  defendant  has  had  a 
notice.  The  question  is,  how  far  he  is  led  on  by  the  defendant  from 
time  to  time  to  go  on  with  the  proceedings.  All  these  are  matters, 
in  my  mind,  for  the  jury  to  say  whether  the  costs  were  incurred  by 
the  reasonable  act  of  the  one  party,  to  which  he  is  led  by  the  mis- 
representation of  the  other.  It  seems  to  me  all  these  points  really 
enter  into  the  question  of  whether  it  is  reasonable  or  not.  It  was 
not  wished  that  this  question  should  be  left  to  the  jury,  and  I  am 
in  the  situation  of  a  juryman.  I  think  that  the  plaintiff  here,  under 
the  circumstances,  it  being  the  only  chance  he  had  apparently  of  get- 
ting what  he  desired — if  he  sued  for  damages  probably  he  would 
not  have  got  the  remedy  he  desired  of  being  able  to  send  the  wool 
abroad — was  taking  the  readiest  and  best  mode  which  he  could  have 
taken.  I  think,  therefore,  these  were  costs  reasonably  incurred, 
owing  to  the  conduct  of  the  defendants,  and  that  the  plaintiff,  in 
acting  under  those  representations  made  by  the  defendants,  was  not 
doing  an  unreasonable  act  in  trying  to  get  that  remedy  ;  but  that  he 
failed,  where  he  would  have  succeeded,  but  for  the  fact  that  the  de- 
fendants asserted  the  authority  when  they  had  it  not.  Therefore,  I 
think  there  should  be  no  rule  on  that  ground. 

Blackburn,  J. — I  am  of  the  same  opinion.  Since  Collen  v. 
Wright,  the  decision  being  affirmed  in  the  Exchequer  Chamber,  we 
must  take  it  to  be  the  rule  of  law,  that  where  a  person  makes  a  bar- 
gain professing  to  have  authority  from  another  to  bind  that  princi- 
pal, he  impliedly  warrants  he  has  got  the  authority,  unless  there  has 
been  something  in  the  transaction  to  rebut  that  implication.  I  do 
not  think  it  would  necessarily  follow  in  every  case  that  there  was  a 
warranty.  The  facts  here  are  that  Graeme,  bargaining  with  Foulkes 
in  Liverpool,  supposed  that  Foulkes  had  authority  from  Lloyds.  I 
think  it  probable  that  the  circumstances  might  have  amounted  to  an 
authority,  but  it  would  merely  be  an  authority  from  Foulkes  and 
not  from  Lloyds,  and  they  would  not  necessarily  justify  a  warranty 
that  the  defendants  actually  had  authority  from  Lloyds  in  London. 
And  if  the  defendant  Graeme  had  told  Hughes,  "  We  make  this  con- 


HUGHES   v.   GRAEME.  391 

tract,  but  it  is  subject  to  approval  if  made  in  twenty-four  hours,"  or 
something  of  that  sort,  "  from  Lloyds,"  then  there  would  have  been 
no  implication  of  warranty.  But  all  that  has  been  negatived  by  the 
finding  of  the  jury,  who  found,  in  substance,  that  the  defendant 
Graeme,  the  broker,  made  this  contract  professing  to  act  for  the 
sellers,  Lloyds,  but  having  no  authority  from  either  Lloyds  or 
Foulkes  to  make  the  particular  contract.  I  do  not  say  anything 
upon  the  point  Mr.  Coleridge  urged,  that  there  was  no  such  war- 
ranty of  authority,  because  Graeme  acted  for  both  parties.  I  own  I 
scarcely  understand  the  proposition,  or  why,  because  a  man  might 
say,  "  I  am  acting  for  you,  and  I  had  also  authority  from  the  other 
side  for  making  the  bargain,"  the  warranty  should  not  arise  in  that 
case.  It  stands,  therefore,  that  Graeme  had  warranted  that  he  had 
authority  from  Lloyds  to  make  this  bargain,  when,  in  point  of  fact, 
he  had  no  such  authority  himself,  and  he  must  make  good  the  damage 
resulting  from  that. 

Then  comes  the  great  question  at  present  before  us,  whether  or 
not  the  damages  include  the  costs  in  this  chancery  suit ;  and  I  take 
it,  the  rule,  which  my  brother  Ckompton  has  alluded  to,  in  Collen  v. 
"Wright,  is  to  be  considered  here,  that  if  a  person  takes  a  particular 
course,  reasonably,  naturally,  and  lo?m  fide  resulting  from  the  asser- 
tion of  the  authority,  then  the  results  of  that  course  would  be  a 
reasonable  and  natural  consequence  of  the  warranty,  and  the  costs 
of  it  would  be  part  of  the  reasonable  and  natural  damages.  That 
would  be,  properly  speaking,  a  question  of  fact,  and  would  be  a 
proper  question  for  the  jury  ;  but  the  course  taken  at  the  trial  was, 
it  was  treated  as  a  question  reserved  for  this  court,  and  what  we  are 
to  say  is — putting  ourselves  in  the  position  of  a  jury — would  a 
reasonable  jury,  properly  directed,  have  given  these  damages  or 
not  ?  And  it  seems  to  me  that,  when  the  defendant  Graeme  had 
warranted  he  had  got  authority,  and  continued  to  assert  he  had 
got  that  authority,  if  the  assertion  was  continued,  and  he  never  re- 
called it,  it  was  a  reasonable  and  natural  consequence  from  it  that 
the  plaintiff,  Mr.  Hughes,  should,  acting  upon  that  belief,  proceed 
in  a  proper  way  to  vindicate  what  he  believed  to  be  his  rights,  and 
what  would  have  been  his  rights  if  the  fact  had  been  what  the  de- 
fendant had  warranted  it  was,  and  continued  to  assert  that  it  was. 
Then  the  course  he  took  for  that  purpose  was  a  bill  in  chancery.  I 
think  we  must  take  it,  when  the  interim  injunction  was  granted, 
that  there  was  a  plausible  ground  for  saying  that  was  a  right  and 
proper  course  ;  for  the  vice  chancellor  would  not  have  granted  that 
injunction  if  he  had  thought  it  apparently  unreasonable  to  go  to 


392  UNAUTHORIZED   CONTRACTS. 

chancery  at  all ;  and  that  the  mere  fact  of  there  being  goods  in 
question  would  not  have  prevented  the  plaintiff's  remedy  being  in 
chancery.  His  honor  would  not  have  otherwise  granted  the  injunc- 
tion, but  he  did  grant  the  injunction,  and  the  case  proceeds  in  chan- 
cery to  proof ;  and  as  I  understand  the  vice  chancellor's  judgment, 
the  ground  his  honor  went  on  was  this :  on  the  case,  and  on  the  evi- 
dence brought  before  him,  it  was  not  proved  that  there  was  authority 
in  the  present  defendants ;  his  honor  rather  thought  that  it  was  dis- 
proved, namely,  that  there  was  no  authority,  but,  at  all  events,  it 
was  not  proved  there  was  authority.  Therefore,  upon  that  ground 
the  bill  failed.  It  was  not  upon  the  ground,  if  there  had  been  au- 
thority, or  if  the  warranty  had  been  true,  it  would  not  have  been  a 
right  or  proper  course,  but  on  the  ground  that  the  plaintiff's  case 
was  not  established  as  true.  That  being  so,  the  case  seems  to  me  to 
be  analogous  to  Collen  v.  Wright.  The  proceeding  was  one,  natu- 
rally, reasonably,  and  bona  fide,  instituted  in  consequence  of  the 
warranty,  and  the  continued  assertion  that  there  was  the  authority. 
That  being  so,  it  seems  to  me  that  it  is  right  and  proper  that  the 
costs  should  be  allowed ;  but  I  quite  agree  that  it  should  be  only 
the  amount  which  the  plaintiff  actually  lost  in  the  proceedings ;  and 
consequently  it  should  not  be  the  amount  of  the  costs  that  may  have 
been  sent  in  between  him  and  his  attorney,  but  the  amount  of  costs 
as  taxed  by  the  taxing  master. 

Mellok,  J. — As  to  the  first  matter,  I  entirely  agree  with  the 
answer  given  by  the  Lord  Chief  Justice  with  reference  to  the  war- 
ranty of  authority  where  the  agent  is  the  agent  of  both  parties,  and 
I  do  not  wish  to  say  one  word  upon  it  further.  With  reference  to 
the  main  question  argued  in  the  case,  applying  the  doctrine  estab- 
lished in  Collen  v.  Wright  to  the  findings  of  the  jury,  it  seems  to 
me  the  decision  must  depend  upon  that  case,  and  I  quite  agree  with 
the  rest  of  the  court,  that  the  costs  of  the  chancery  suit  may  be  re- 
covered as  damages.  Considering  what  we  must  take  as  the  reserva- 
tion in  this  case,  namely,  whether  the  jury,  properly  directed,  would 
have  found  the  costs  in  the  chancery  suit  were  properly  incurred, 
and  flowing  from  the  warranty  of  authority  by  the  defendant,  I 
cannot  help  thinking  they  were  reasonable,  and,  under  the  circum- 
stances of  this  case,  they  may  be  very  fairly  given.  Then  as  to  the 
reduction  which  is  to  be  made,  the  damages  ought  to  be  reduced  to 
such  amount  with  reference  to  the  items  of  the  costs  in  chancery,  as 
shall  be  certified  by  the  proper  taxing  officer  to  be  the  reasonable 
costs  occasioned  in  that  suit. 

Rule  nisi  to  reduce  the  damages  by  the  amount  taxed  off  the 
plaintiff's  costs. 


ALLEN  v.    SUYDAM.  393 

A  rule  was  also  the  same  day  obtained. 

Per  Curiam  (Cockburn,  C.  J.,  Blackburn,  J.,  Mellor,  J.,  and 
Shee,  J.) — The  rule  obtained  by  the  defendants  must  be  absolute  to 
reduce  the  damages  by  the  amount  (if  any)  that  may  be  taxed  off 
the  costs  of  the  plaintiff  in  the  chancery  suit,  on  taxation  as  between 
solicitor  and  client.  The  rule  obtained  by  the  plaintiff  must  be  ab- 
solute to  increase  the  damages  by  an  amount  to  be  arrived  at  by 
estimating  the  difference  between  the  contract  price  of  the  several 
cargoes  and  the  value  of  that  wool,  or  wool  of  similar  quality,  taking 
into  account  the  fact  that  it  was  duty  free  in  America  at  the  times 
and  places  when  and  where  it  would  have  been  delivered  if  the  con- 
tract had  been  binding  ;  and  also  taking  into  account  all  mercantile 
circumstances  affecting  the  value  of  such  wool  in  those  places. 

Rule  absolute  accordingly.* 

Note.— See  Collen  r.  Wright,  8  E.  &  B.  647;  affi'g  7  E.  &  B.  (Q.  B.)  301 ; 
also,  White,  Receiver,  v.  Madison,  26  K  Y.  117. 


PRINCIPAL  AND  AGENT. 

Principal  and  Agent  ;  Negligence  ;  Mitigation. 


COURT   FOR   THE    CORRECTION    OF    ERRORS    OF   THE    STATE    OF    NEW    YORK. 

[1838.]  Allen  v.  Suydam  (20  Wend.  321). 

The  law  imposes  on  the  agent  for  the  collection  of  a  bill  the  duty  of  presenting  it  for 
acceptance  and  payment  without  unnecessary  delay ;  and  the  fact  that  it  was  not 
put  into  his  hands  until  some  time  after  its  date  is  no  excuse  for  his  neglect  of  this 
duty. 

Where,  under  such  circumstances  the  bill  is  not  collected,  the  agent  is  prima  facie  liable 
for  the  whole  amount  thereof,  with  interest.  But  he  is  at  liberty  to  prove  the  actual 
loss  attributable  to  him  to  be  less,  and  is  liable  only  for  such  damages  as  the  evi- 
dence shows  were  actually  sustained  by  reason  of  his  negligence. 

Error  from  the  Supreme  Court  of  New  York. 

This  was  an  action  by  Suydam  and  Boyd  against  S.  and  M.  Allen 
for  negligence  in  omitting  to  present  within  a  reasonable  time  for 
acceptance,  a  draft  for  $616  89,  received  by  the  plaintiffs  on  the  16th 
of  August,  1833,  from  one  John  Eastabrook,  at  New  York,  and  which 

*  The  formal  entry  of  the  rules  was  modified,  in  order  to  facilitate  the  defendants  in 
appealing. 


394  PRINCIPAL   AND    AGENT. 

was  drawn  by  him  on  W.  W.  and  J.  E.  Eastabrook,  a  firm  at  Con- 
cord, New  Hampshire.  The  draft  was  dated  July  21,  1833,  and 
payable  two  months  after  date  to  the  plaintiffs  order.  They  placed 
it  on  the  day  of  its  receipt  by  them,  in  the  hands  of  the  defendants, 
who  were  to  be  allowed  a  commission  of  one  per  cent,  for  collection. 
The  defendants  retained  the  draft  till  September  2d,  1833,  on  which 
day  they  mailed  it  to  the  cashier  of  a  bank  at  Concord,  in  a  letter 
which  he  received  on  the  sixth  of  that  month.  On  the  following  day 
he  inquired  of  the  drawees  whether  they  were  ready  to  accept  the 
draft,  and  was  told  they  were  not ;  that  they  did  not  accept  without 
instructions,  and  had  received  none,  but  that  they  expected  to  hear 
from  the  drawer  in  a  short  time.  On  the  10th  of  September  the 
cashier  again  presented  the  draft  to  the  drawees  for  acceptance,  and 
was  then  informed  by  them  that  they  had  been  instructed  not  to 
accept,  and  therefore  should  not.  The  draft  was  then  protested  for 
non-acceptance,  and  returned  to  the  defendants,  who  received  it 
September  16th,  and  on  the  same  day  sent  it  to  the  plaintiffs,  with  a 
request  for  the  return  of  the  receipt  given  for  it.  The  plaintiffs 
refused  to  surrender  the  defendant's  receipt  or  take  back  the  draft. 
On  the  19th  of  the  same  month  the  defendants  requested  to  be  in- 
formed by  the  plaintiffs  whether  they  wished  the  draft  again  sent  to 
Concord  and  protested  for  non-payment.  The  plaintiffs  replied  that 
it  had  been  given  to  the  defendants  for  collection,  and  if  through 
want  of  attention  any  accident  should  befall  it,  they  would  be  held 
responsible.  The  drawer  died  insolvent  on  the  9th  of  October,  1833. 
It  appeared  that  he  had  funds  (the  amount  of  which  was  not  shown) 
in  the  hands  of  the  drawees  at  the  time  when  the  draft  was  drawn, 
but  not  when  it  was  presented  for  acceptance.  It  also  appeared  that 
after  August  16,  1833,  drafts  drawn  by  John  Eastabrook  on  the 
same  drawees,  amounting  together  to  $2,000,  were  accepted  and  paid 
or  secured.  The  drawees  testified  that  it  was  their  invariable  rule 
not  to  accept  without  instructions  from  the  drawer,  and  that  the 
time  which  intervened  before  the  draft  was  presented  did  not  affect 
their  action  in  regard  to  its  acceptance. 

The  presiding  judge  charged  the  jury  that  the  defendants  were 
bound  to  present  the  draft  for  acceptance  with  reasonable  diligence 
after  its  receipt  by  them,  and  that  if  they  did  not  do  so,  they  were 
liable  for  all  damages  sustained  by  their  neglect  ;  that  as  the  court 
and  jury  had  no  knowledge  as  to  the  extent  of  these  damages,  except 
from  the  amount  of  the  draft,  the  jury  should  find  a  verdict  for  the 
plaintiffs  for  that  amount,  with  interest.     This  they  accordingly  did. 

Judgment  on  the  verdict  having  been  entered  in  the  Superior 


ALLEN  v.    SUYDAM.  395 

Court  of  the  city  of  New  York,  and  affirmed  on  error  in  the  Su- 
preme Court,  the  cause  was  removed  by  writ  of  error  to  this  court, 
where  it  was  argued. 

By  the  Chancellor. — Two  questions  of  importance  to  the  com- 
mercial community  are  presented  for  our  consideration  and  decision 
in  this  cause  :  1st.  Whether  an  agent  or  broker  who  receives  for  col- 
lection a  draft  or  bill  of  exchange  payable  at  a  particular  day,  or  a 
certain  number  of  days  after  its  date,  is  under  any  obligation  to  pre- 
sent the  same  to  the  drawee  for  acceptance  immediately,  and  before 
the  time  when  the  draft  is  due  and  payable  %  And  2d.  If  he  is, 
whether  the  person  who  has  given  him  such  draft  or  bill  for  collec- 
tion, can,  in  case  of  his  neglect  to  present  the  same  before  the  day 
of  payment,  recover  the  whole  amount  due  thereon,  with  interest ; 
although  the  owner  has  not  in  fact  sustained  damage  to  that  extent, 
by  the  neglect  of  his  broker  or  agent  to  present  the  bill  for  accept- 
ance without  any  unnecessary  delay  \ 

[The  learned  Chancellor  having  answered  the  first  of  these  ques- 
tions in  the  affirmative,  holding  that  the  receiving  of  a  bill  by  an 
agent  to  collect,  implies  not  only  an  obligation  on  his  part  to  take 
the  necessary  steps  to  charge  the  drawer  and  indorsers  by  protest 
and  notices  in  case  of  its  not  being  accepted  and  paid  by  the  drawee, 
but  also  due  diligence  on  the  part  of  the  agent  in  endeavoring  to 
procure  the  drawee's  acceptance  without  delay,  whenever  so  doing 
may  be  necessary  or  beneficial  to  the  interests  of  the  principal ;  and 
that  the  fact  that  in  this  case,  the  bill  was  not  put  into  the  agents' 
hands  till  some  time  after  it  bore  date  was  no  legal  excuse  for  their 
not  sending  it  on  for  acceptance  and  payment  without  unnecessary 
delay,  proceeded  as  follows  :] 

In  relation  to  the  amount  of  damages,  however,  I  think  the  charge 
of  the  judge  who  tried  the  cause  was  clearly  wrong ;  and  that  it  has 
unquestionably  produced  great  injustice  in  this  case.  As  we  have 
before  seen,  the  relation  between  the  drawer  or  indorser  of  the  bill 
and  the  person  to  whom  it  is  transferred  for  the  mere  purpose  of 
negotiation  or  collection,  is  not  the  relation  of  indorser  and  indorsee, 
so  as  to  throw  the  loss  of  the  whole  amount  of  the  bill  upon  the  lat- 
ter, if  he  neglects  to  present  the  same  for  acceptance  and  payment 
in  time,  or  to  give  notice  of  its  dishonor  to  the  indorser,  as  required 
by  law.  JS"or  will  the  payment  of  the  damages,  by  the  agent,  have 
the  effect  to  subrogate  him  to  all  the  rights  and  remedies  of  the  per- 
son from  whom  he  received  the  bill,  as  against  other  parties  who 
may  be  liable  for  the  payment  thereof ;  but  it  is  a  mere  contract  of 
agency,  which  leaves  the  indorser  to  all  his  rights  and  remedies  for 


396  PRINCIPAL   AND   AGENT. 

the  recovery  of  his  debt  as  against  other  parties,  and  only  renders 
the  indorsee  liable  as  agent  for  the  actual  or  probable  damages  which 
his  principal  has  sustained  in  consequence  of  the  negligence  of  such 
agent.  This  principle  was  distinctly  recognized  by  the  Court  of 
King's  Bench  in  England,  in  the  case  of  Yan  Wart  v.  Woolley  (5 
Dowl.  &  Kyi.  37-i),  where  the  plaintiff  had  not  lost  his  remedy 
against  the  drawers  of  the  bill,  or  the  persons  from  whom  he  re- 
ceived it,  by  reason  of  the  neglect  of  the  agents  to  present  it  for 
acceptance  in  due  time ;  the  drawers  of  the  bill  in  that  case  having 
drawn  without  authority,  when  they  had  no  funds  in  the  hands  of 
the  drawees,  and  Irving  &  Co.,  who  had  sent  the  bill  to  the  plaintiffs 
in  payment,  not  standing  in  the  situation  of  indorsers  of  the  bill,  as 
their  names  did  not  appear  upon  it.  In  that  case,  however,  if  there 
had  been  any  evidence  to  warrant  the  belief  that  the  bill  would  have 
been  accepted  if  an  immediate  acceptance  or  rejection  of  the  bill  by 
the  drawees  had  been  insisted  on,  according  to  the  decision  in  the 
case  of  The  Bank  of  Scotland  v.  Hamilton,  the  loss  which  had  arisen 
from  the  neglect  of  the  defendant  in  not  pressing  for  an  acceptance, 
or  in  not  giving  due  notice  of  the  dishonor  of  the  bill  immediately, 
if  it  could  then  probably  have  been  collected  from  the  drawees, 
should  have  fallen  upon  Woolley  &  Co.  instead  of  Irving  &  Co., 
who  had  remitted  the  same  to  Yan  Wart ;  and  the  plaintiff  would 
then  have  been  permitted  to  recover  whatever  damages  had  been 
sustained  by  such  negligence,  for  the  benefit  of  Irving  &  Co.  In 
that  respect  Irving  &  Co.  stood  in  the  same  relative  situation  to  Yan 
Wart,  as  Dunlop  did  to  the  Bank  of  Scotland,  in  the  case  before  re- 
ferred to ;  and  Woolley  &  Co.  occupied  the  situation  of  Hamilton 
&  Co.,  who  were  held  liable  in  that  case,  in  exoneration  of  Dunlop's 
liability.  The  only  difference  in  principle  which  I  can  see  between 
the  two  cases  is,  that  in  the  Scotch  case  it  was  evident  that  the  bill 
would  probably  have  been  accepted  and  saved,  if  it  had  been  pre- 
sented for  acceptance  on  Saturday,  when  it  was  received  by  the  agent 
in  Glasgow,  instead  of  being  kept  back  until  Tuesday  evening,  when 
news  of  the  drawers'  failure  had  reached  that  place ;  and  therefore, 
to  exonerate  Dunlop,  who  remitted  the  bill,  the  agents  in  Glasgow 
were  very  properly  charged  with  the  amount  of  the  bill,  the  whole 
of  which  had  been  lost  through  their  negligence,  except  the  small 
amount  of  dividend  which  the  bank  would  be  entitled  to  out  of  the 
drawer's  estate  under  the  commission  of  bankruptcy  against  him  ; 
whereas  in  the  case  of  Yan  Wart  v.  Woolley,  there  was  no  reason  to 
believe  that  the  bill  would  have  been  accepted  if  the  agent  had  in- 
sisted upon  an  answer  immediately,  and  there  was  as  little  probabil- 


ALLEN   v.    SUYDAM.  397 

ity  that  anything  would  have  been  obtained  from  the  drawers  if 
Yan  Wart  or  Irving  &  Co.  had  received  notice  of  the  dishonor  of 
the  bill  immediately  after  it  was  received  by  the  agent  in  London. 
In  the  latter  case,  therefore,  the  damage  which  either  Yan  Wart  or 
those  who  had  transmitted  him  the  bill  in  payment  had  sustained, 
was  merely  nominal.  Besides,  the  Supreme  Court  of  this  State  hav- 
ing decided  that  neither  the  drawers  nor  Irving  tfc  Co.  were  dis- 
charged from  their  liability  to  the  plaintiff  by  this  neglect  of  his 
agent,  neither  of  them  in  fact  having  been  injured  by  such  neglect, 
the  plaintiff  upon  the  second  trial  was,  of  course,  only  held  to  be  en- 
titled to  such  damages  as  he  had  sustained,  and  which  were  nominal 
only.  If  the  rule  laid  down  by  the  judge  who  tried  the  present  case 
was  correct,  that  the  principal  was  entitled  to  recover  the  whole 
amount  of  the  bill  and  interest,  because  there  was  no  other  evidence 
to  enable  the  jury  to  discover  what  the  damage  was,  then  the  plaintiff 
in  the  case  of  Yan  Wart  v.  Woolley  should  have  been  permitted  to 
retain  his  verdict  upon  the  first  trial ;  as  it  did  not  then  appear 
whether  he  could  actually  succeed  in  collecting  the  money,  either 
from  the  drawers  of  the  bill  or  from  Irving  &  Co. ;  neither  did  it 
then  appear  whether  by  the  laws  of  this  State,  where  they  resided, 
they  were  not  actually  •  discharged  from  liability,  so  that  no  judg- 
ment could  be  recovered  against  them,  in  consequence  of  the  negli- 
gence of  the  agent.  The  granting  of  the  new  trial  in  that  case, 
therefore,  proceeded  upon  the  principle  that  the  agent  was  not  liable 
for  the  whole  amount  of  the  bill,  unless  damages  to  that  extent  had 
been  sustained  by  his  neglect,  and  that  to  recover  damages  to  that 
extent  it  was  incumbent  upon  the  party  claiming,  to  give  sufficient 
evidence  to  satisfy  the  court  and  jury  that  it  was  at  least  probable 
that  he  had  sustained  damages  to  that  amount.  Neither  the  Scotch 
or  the  English  case,  therefore,  is  an  authority  to  sustain  the  charge 
of  the  judge  in  relation  to  the  amount  of  damages  in  the  present 
case ;  on  the  contrary,  the  case  of  Yan  Wart  v.  Woolley  is  a  direct 
authority  to  show  that  the  agent  ought  not  to  be  charged  with  the 
whole  amount  of  the  bill,  unless  there  is  sufficient  evidence  to  render 
it  at  least  probable  that  the  whole  amount  of  the  debt  would  have 
been  saved  if  the  agent  had  discharged  the  duty  which  his  situation 
imposed  upon  him. 

Where  there  is  a  reasonable  probability  that  the  bill  would  have 
been  accepted  and  paid  if  the  agent  had  done  his  duty  ;  or  where,  by 
the  negligence  of  the  agent,  the  liability  of  a  drawer  or  indorser  who 
was  apparently  able  to  pay  the  bill  has  been  discharged,  so  that  the 
owner  of  the  bill  cannot  legally  recover  against  such  drawer  or 


398  PRINCIPAL   AND   AGENT. 

indorser,  I  admit  the  agent  by  whose  negligence  the  loss  has  occurred 
is  prima  facie  liable  for  the  whole  amount  thereof  with  interest,  as 
damages ;  unless  he  is  able  to  satisfy  the  court  and  jury  that  the 
whole  amount  of  the  bill  has  not  been  actually  lost  to  the  owner  in 
consequence  of  such  negligence.  The  case  under  consideration,  how- 
ever, is  one  of  a  very  different  description.  Here  it  is  perfectly  evi- 
dent, from  the  testimony  of  one  of  the  drawees,  that  the  draft  would 
not  have  been  accepted  at  any  time  after  it  was  received  by  the 
Aliens  for  collection,  as  the  drawees  had  received  express  directions 
from  the  drawer  not  to  accept ;  nor  would  they  have  accepted  it, 
even  without  such  a  prohibition,  unless  they  had  previously  been 
advised  so  to  do  by  the  drawer.  The  fact  also,  that  the  drawer's 
credit  was  not  good  at  the  time  this  draft  was  received  for  collec- 
tion, he  having  suffered  his  note  to  Boyd  &  Suydam  to  lie  under 
protest  for  some  time,  and  the  express  directions  given  by  him  to 
the  drawees  not  to  accept  this  draft,  rendered  it  highly  improbable 
that  he  would  have  paid  the  draft  himself  to  save  his  credit,  if  it  had 
been  sent  back  protested  at  an  earlier  day.  From  the  facts  of  the 
case,  therefore,  I  think  there  was  no  ground  for  supposing  that  the 
owners  had  sustained  any  actual  damage  from  the  mistake  of  the 
Aliens,  in  not  sending  on  the  bill  for  acceptance  immediately  after 
they  received  it  for  collection  in  New  York  ;  or  that  their  chance  of 
obtaining  payment  from  the  drawer  was  materially  impaired  by  the 
delay  of  the  protest  for  a  few  days.  Under  the  circumstances  of 
this  case,  therefore,  I  think  the  jury  should  have  been  instructed 
that,  upon  the  evidence,  the  plaintiffs  were  only  entitled  to  nominal 
damages ;  or  at  least  they  should  have  been  told  to  find  only  such 
damages  as  they  should,  from  the  evidence,  believe  it  probable  the 
plaintiffs  might  have  sustained  by  the  delay  in  presenting  the  draft 
for  acceptance  immediately ;  for  I  do  not  see  how  it  is  possible  for 
any  one  to  believe,  or  even  to  suppose  it  probable  from  this  evidence, 
that  the  whole  amount  of  this  draft  was  in  fact  lost  to  the  plaintiffs 
below  by  the  delay  of  the  Aliens  in  presenting  it  to  the  drawees,  and 
giving  notice  of  the  dishonor  thereof  immediately  to  the  drawer ; 
who  never  intended  that  it  should  be  accepted  and  paid. 

For  these  reasons  I  am  of  opinion  that  the  judgment  of  the 
court  below  should  be  reversed,  and  that  a  venire  de  novo  should  be 
awarded ;  to  the  end  that  no  more  damages  may  be  recovered  than 
such  as  a  jury  may  believe  it  probable,  from  the  evidence  adduced, 
that  the  plaintiffs  may  have  sustained  from  the  negligence  of  their 
agents. 

Senator  Yerplanck  dissenting. — [After  holding  that  there  was  a 


ALLEN  v.    SUYDAM.  399' 

want  of  due  diligence  in  the  agents'  delay  in  presenting  the  bill  for 
acceptance,  which  made  them  responsible  for  the  damages  so  caused, 
the  Senator  proceeded  as  follows  :] 

Thus  far,  then,  I  think  the  law  quite  clear  as  to  the  rights  of 
holders  of  bills,  and  the  duties  of  collecting  agents,  but  I  have 
had  more  hesitation  as  to  the  rule  of  damages.  Is  the  plaintiff  in 
similar  cases  to  be  obliged  to  make  out  in  evidence  the  precise  actual 
amount  of  the  damage  he  sustained,  and  thus  to  give  to  the  party 
in  fault  all  the  numerous  and  great  advantages  of  doubt,  uncertainty 
and  difficulty  in  the  proof  1  Or  are  we  to  apply  to  these  cases  the 
doctrine  of  laches  in  commercial  paper,  as  between  the  holder  and 
other  parties,  and  consider  the  agent  as  having  made  the  paper  his 
own  by  his  neglect  ?  Contradictory  as  these  rules  are,  they  have  yet 
each  their  share  of  authority,  and  are  just  and  wise  when  applied  to 
other  questions  ;  but  I  am  not  satisfied  with  the  equity  in  the  com- 
mercial policy  of  either,  when  applied  to  a  collecting  agency,  and  I 
have  sought  in  the  decisions  for  some  safer  and  more  equitable  doc- 
trine on  that  head. 

Considering  the  subject  in  regard  to  commercial  policy,  there  is, 
on  one  side,  the  vast  amount  of  paper  daily  collected  through  our 
banks,  the  great  public  necessity  for  giving  every  facility  and  induce- 
ment to  such  collections,  the  serious  drawback  on  those  facilities  and 
inducements  that  would  be  occasioned,  and  the  opportunity  of  fraud 
afforded  if  worthless  paper  deposited  for  collection  can,  whenever 
parties  are  discharged  by  the  blunder  of  a  clerk,  be  saddled  irrevo- 
cably on  responsible  agents  and  "  made  their  own "  absolutely,  and 
without  allowing  any  defense  or  mitigation  of  damages.  On  the 
other  hand,  the  policy  of  holding  such  agents  to  strict  accountability 
is  equally  clear.  Our  whole  system  of  negotiable  paper  and  its  re- 
sponsibilities, formed,  as  it  is,  by  long  experience,  and  admirably 
adjusted  to  the  varied  uses  of  commerce,  rests  upon  the  single  prin- 
ciple of  strict  punctuality  in  demands,  presentments  and  notices,  as 
well  as  in  payments.  Now  the  policy  and  necessity  of  that  punctu- 
ality apply  with  the  same  force  to  the  agent  of  such  paper  that  they 
do  to  the  principal.  I  can,  therefore,  find  no  sounder  rule  of  dam- 
ages, nor  one  better  protecting  and  reconciling  all  these  claims  of 
policy  and  justice,  than  that  pointed  out  by  the  decisions  in  a  large 
class  of  cases  of  agency,  and  by  the  analogy  of  the  measure  of  dam- 
ages in  trover.  In  those  cases,  the  presumption  is,  in  the  first  in- 
stance, to  the  full  nominal  amount  of  the  loss,  as  it  appears  on  the 
face  of  the  transaction  against  the  agent  wanting  in  diligence,  or  the 
party  guilty  of  the  tortious  conversion.     Thus,  where  an  agent  or 


400  PRINCIPAL   AND    AGENT. 

factor  neglects  to  insure  for  his  principal,  according  to  order,  lie  is 
held  responsible  for  the  default,  prima  facie,  to  the  total  amount 
which  he  ought  to  have  covered  by  insurance.  But  at  the  same  time 
he  is  allowed  to  put  himself  in  the  place  of  the  underwriter,  and  to 
prove  fraud,  deviation,  or  any  other  defense  which  would  have  been 
good,  had  the  insurance  been  made,  or  which  would  go  to  show  that 
nothing  at  all,  or  how  much  was  actually  lost  by  the  neglect  (Delancy 
v.  Stoddart,  1  T.  E.  22  ;  Wallace  v.  Tellfair,  2  Id.  188  ;  Webster  v. 
De  Tastet,  7  Id.  757 ;  in  the  courts  of  this  State,  Bundle  v.  Moore,  3 
Johns.  Cas.  36  ;  and  in  the  courts  of  the  United  States,  Morris  v. 
Summeril,  2  Wash.  It.  203  ;  see  also  1  Phil,  on  Ins.  521,  and  the 
cases  there  cited.)  So  too,  in  actions  against  sheriffs,  where  those 
official  public  agents  become  chargeable  with  the  debt  of  another,  by 
their  own  negligence  or  misconduct.  When  the  default  is  estab- 
lished, the  amount  due  the  plaintiff  in  the  original  suit  is  the  jwima 
facie  evidence  of  the  measure  of  damages.  This  presumption  may 
be  controlled  or  rebutted,  and  the  sheriff  may  give  in  evidence  any 
fact,  showing  either  that  the  party  has  not  been  actually  injured,  or 
to  a  much  less  amount.  He  may  show,  for  instance,  the  insolvency 
of  the  original  debtor.  But  the  burden  of  proof  is  upon  him  ;  if  he 
leaves  the  presumption  uncontradicted,  that  establishes  the  measure 
of  damages.  This  has  been  frequently  ruled  at  our  circuits,  nor  can 
I  find  that  it  has  ever  been  questioned  in  our  Supreme  Court,  and  is 
substantially  recognized  in  Potter  v.  Lansing  (1  Johns.  215),  Itus- 
sell  v.  Turner  (7  Id.  189).  The  Massachusetts  decisions  are  particu- 
larly full  and  express  on  this  very  point  (see  10  Mass.  470;  11  Id. 
89 ;  Ibid.  188  ;  13  Id.  187).  Similar  decisions  may  be  found  in  the 
reports  of  other  States.  So  again  in  trover.  In  Ingalls  v.  Lord  (1 
Cow.  210),  in  trover  for  a  note,  it  was  held  that  the  prima  facie 
measure  of  damages  was  the  face  of  the  note ;  but  that  evidence 
might  be  given  to  reduce  the  amount,  by  proving  payment  in  part, 
or  the  insolvency  of  the  maker,  or  any  other  fact  invalidating  the 
note  or  lessening  its  value. 

It  is  true  that  Lord  Tenterden,  in  Van  Wart  v.  Woolley,  above 
cited,  held  that  damages  must  be  shown,  and  that  the  face  of  the  bill 
is  not  the  conclusive  measure  ;  but  this  I  think  is  not  in  contradic- 
tion to  the  view  that  I  have  taken.  I  therefore  take  the  cases  before 
mentioned  to  point  out  the  sound  doctrine  here.  The  face  of  the 
bill  is  the  prima  facie  measure  of  damages.  These  may  be  reduced 
by  any  positive  evidence  proving  the  real  damage  to  be  less  ;  but  the 
burden  of  that  proof  must  be  upon  the  negligent  agent,  and  not  on 
the  party  who  suffers  by  his  negligence.     Circumstances  like  those 


ALLEN   v.    SUYDAM  401 

of  the  present  case  may  often  render  it  difficult  or  impossible  for 
either  party  to  prove  or  even  to  form  a  probable  estimate  of  the  pre- 
cise damages  incurred  by  the  agent's  neglect.  In  such  cases  is  it  not 
just  that  those  chances  of  loss  which  must  fall  upon  one  or  the  other 
should  be  thrown  upon  the  party  in  default,  and  not  upon  the  inno- 
cent sufferer  ?  It  was,  then,  for  the  defendants  here  to  show  that 
the  debt  would  not  have  been  paid  had  due  diligence  been  used,  or 
that  there  were  any  other  circumstances  to  diminish  the  actual  dam- 
ages below  the  nominal  amount.  I  do  not  see  that  this  was  done, 
and  therefore  think  that  Chief  Justice  Jones  was  right  in  his  charge, 
"  That  the  court  and  jury  having  no  knowledge  what  the  amount  of 
damages  was  except  from  the  proof  of  the  amount  of  the  draft,  the 
jury  should  find  for  the  plaintiffs  for  the  amount  of  the  draft,  and 
interest  from  the  day  it  became  due." 

Perhaps  the  case  was  a  hard  one.  So  are  many  others  that  arise 
under  our  law  of  negotiable  paper,  in  consequence  of  laches  of  par- 
ties. In  all  such  instances,  the  hardship  of  the  particular  case  must 
yield  to  the  necessity  of  adhering  to  some  general  rule  founded  on 
broad  considerations  of  public  policy.  I  can  find  no  such  rule  safer 
or  more  conducive  to  commercial  convenience,  or  sanctioned  by 
stronger  authority  than  the  one  I  have  stated. 

If,  however,  we  abandon  this  rule,  the  only  alternative,  in  my 
judgment,  so  far  as  authority  governs,  is  to  adopt  the  stricter  doc- 
trine of  our  Supreme  Court  in  Le  Guen  v.  Gouverneur  &  Kemble  (1 
Johns.  Cas.  467,  and  affirmed  in  1800  in  this  court),  "  That  where 
the  property  consists  of  credits,  the  agent  whose  breach  of  orders 
causes  damages,  is  bound  to  answer  to  the  amount  of  the  credits,  and 
the  principal  may  abandon  to  him."  The  only  defense  distinctly 
recognized  as  valid  in  those  doctrines  is  that  of  fraud,  or  some  simi- 
lar  one  going  to  invalidate  the  whole  contract. 

Upon  this  principle,  the  agents  here  would  be  held  to  have  made 
the  paper  their  own  by  their  default,  if  the  plaintiffs  below  thought 
fit  to  abandon  it  to  them  ;  and  this,  perhaps,  is  the  ground  on  which 
the  Superior  Court  rested  their  decision  in  this  case ;  the  reasons  of 
which  I  regret  that  we  have  not  before  us. 

Under  the  circumstances  of  the  case,  either  this  rule  or  that 
which  I  have  stated  before,  would  affirm  the  judgments  of  the 
courts  below;  but  I  place  my  own  vote  for  affirmance  upon  the 
ground  first  stated,  as  being  the  most  equitable,  the  most  conducive 
to  public  policy,  and  as  supported  by  the  analogy  and  authority  of 
many  modern  decisions. 

On  the  question  being  put,  Shall  this  judgment  be  reversed  ?  the 
26 


402  PRINCIPAL   AND   AGENT. 

members  of  the  court  divided  as  follows  :  20  in  the  affirmative,  and 
4  in  the  negative.  "Whereupon  the  judgments  in  the  courts  below 
were  reversed,  and  a  venire  de  novo  directed  to  be  awarded  by  the 
Superior  Court. 

In  the  rule  for  judgment  of  reversal  the  following  entry  was 
made :  "It  is  further  ordered  and  adjudged,  that  an  agent  who  re- 
ceives a  bill  of  exchange  for  collection  which  has  not  been  accepted, 
is  bound  to  present  the  same  for  acceptance  without  unreasonable 
delay,  as  well  as  to  present  the  same  for  payment  when  it  becomes 
due,  or  he  will  be  liable  to  his  principal  for  the  damages  which  the 
latter  sustains  by  such  negligence." 


Factor  ;  Breach  of  Instruction  ;  Unauthorized  Sale  ;  Mitigation. 


COURT   OF   APPEALS,    NEW    YORK. 

[1849.]       Blot  v.  Boiceau  and  Eusch  (3  N.  Y.  78). 

In  an  action  against  a  factor  to  recover  damages  for  the  sale  of  goods,  at  a  price  less  than 
that  mentioned  in  his  instructions,  that  price  should,  in  the  absence  of  proof  to  the 
contrary,  be  deemed  the  true  value  of  the  goods.  But  the  consignor  is  at  liberty  to 
enhance  the  damages  by  proving  that  the  goods  are  worth  more  than  the  minimum 
price  he  had  put  on  them.  On  the  other  hand,  the  consignee  may  reduce  the  dam- 
ages by  proving  that  the  goods  were  of  less  value  than  the  price  mentioned  in  the 
instructions. 

Accordingly,  in  such  a  case,  proof  that  the  goods  could  not,  after  diligent  effort,  be  sold 
at  private  sale  at  the  invoice  prices  ;  that  they  were  of  inferior  quality,  not  worth 
more  than  they  were  actually  sold  for  at  auction,  and  were  likely  to  become  unfashion- 
able and  unsalable  if  kept  over  to  another  season,  is  proper. 

Per  Bronson,  J.  This  rule  does  not  apply  to  articles  which  have  no  market  value, 
such  as  antique  paintings,  statues,  or  vases. 

This  was  an  appeal  from  the  judgment  of  the  Superior  Court  of 
the  city  of  New  York  in  an  action  of  assumpsit. 

In  the  summer  of  1844,  the  plaintiff,  who  was  a  manufacturer  at 
Amiens,  in  France,  consigned  to  the  defendants,  who  were  commis- 
sion merchants  at  New  York,  certain  cases  of  goods,  with  instructions 
to  sell  them  at  the  invoiced  prices,  adding  thereto  the  expenses,  duties, 
and  commissions.  The  letters  containing  these  instructions,  expressed 
the  plaintiff's  wish  that  the  goods  should  all  be  disposed  of  that  sea- 
son.    The  invoice  prices  of  the  goods  were  frs.  10,908  82.     After 


BLOT   v.   BOICEAU   AND   RUSCH.  403 

receiving  the  goods,  the  defendants  made  remittances  on  account,  to 
the  consignor,  to  the  amount  of  $4,900. 

The  plaintiff's  goods  were,  after  due  advertisement,  fairly  sold  at 
public  auction  in  New  York,  Philadelphia  a*nd  Boston,  in  September 
and  October,  1844,  and  brought  full  auction  prices.  These  prices 
were  much  less  than  the  invoices.  The  fall  season  for  such  goods 
closed  in  October. 

The  defendants  offered  to  prove  that  the  defendants,  on  re- 
ceipt of  the  goods,  and  until  they  were  sold,  made  diligent  effort  to 
sell  them  at  private  sale,  for  the  prices  specified  in  the  invoices,  but 
could  not ;  also,  that  the  goods  were  of  inferior  quality,  and  not  worth, 
during  the  season  at  which  they  were  sold,  or  afterwards,  more  than 
the  prices  actually  obtained  ;  also,  that  they  were  calculated  to  become 
unfashionable  and  unsalable  if  kept  over  to  a  subsequent  season ;  also, 
that  they  were  sold  in  parcels,  in  connection  with  other  goods  belong- 
ing to  the  defendants  and  their  correspondents,  at  different  places, 
where  it  appeared  they  would  bring  the  best  prices.  The  offer  was 
overruled,  and  the  defendant's  counsel  excepted. 

The  jury,  under  the  court's  direction,  found  a  verdict  for  the 
plaintiff  for  $1,200,  subject  to  the  opinion  of  the  court  on  a  case  to 
be  made,  and  to  adjustment  as  to  the  amount  of  damages.  After  ar- 
gument of  the  case,  the  Superior  Court  directed  judgment  in  the 
plaintiff's  favor,  for  the  invoice  price  of  the  goods,  with  the  expenses, 
necessarily  incurred  on  them,  deducting  the  defendants'  advances. 

Ruggles,  J.,  after  holding  that  the  defendants  were  liable  to  the 
plaintiffs  for  the  damages  resulting  from  the  unauthorized  sale,  con- 
tinued : 

The  question  then  arises,  by  what  rule  are  the  damages  to  be  esti- 
mated ?  The  plaintiff  claimed  to  recover  the  difference  between  the 
amount  of  the  invoices  with  charges  and  interest,  and  the  net  pro- 
ceeds of  the  goods. 

The  defendants  insist  that  the  plaintiff  is  entitled  to  recover,  if  at 
all,  only  according  to  the  actual  value  of  the  goods  after  deducting 
the  proceeds  and  charges. 

Prima  facie  the  invoice  prices  with  the  charges  and  interest 
ouscht  to  be  regarded  as  the  actual  value,  and  if  no  other  evi- 
dence  of  value  had  been  given  or  offered,  the  plaintiff  should 
have  recovered,  according  to  his  claim  (Stevens  v.  Low,  2  Hill,  132). 

But  the  defendants  proved  that  the  goods  were  fairly  sold  at 
auction,  on  due  notice  with  the  usual  publicity,  and  that  they  pro- 
duced full  auction  prices.  They  offered  to  prove  that  the  goods 
could  not  be  sold  at  private  sale  at  the  invoice  prices  after  diligent 


40±  PRINCIPAL   AND   AGENT. 

efforts  for  that  purpose  ;  that  the  goods  were  of  inferior  quality,  not 
worth  during  the  season  more  than  they  actually  sold  for  at  auction  ; 
and  that  they  were  likely  to  become  unfashionable  and  unsalable  if 
kept  over  to  another  season.  This  evidence  was  excluded  by  the 
court ;  and  the  judge  charged  the  jury  that  the  plaintiff  was  entitled 
to  recover  the  difference  between  the  invoice  prices  with  charges 
and  interest  and  the  net  proceeds.  Exceptions  were  taken  to  these 
■decisions. 

We  are  of  opinion  that  the  court  erred  in  excluding  the  evidence 
of  actual  value  offered  by  the  defendants,  and  in  the  rule  of  damages 
stated  to  the  jury.  In  all  cases,  excepting  those  of  willful  or  mali- 
cious wrong,  the  recovery  should  be  such  as  to  give  the  plaintiff  a 
just  compensation  for  the  wrong  done  or  the  right  withheld,  and 
nothing  more.  This  rule  applies  as  well  to  actions  brought  by  a  prin- 
cipal against  his  agent  as  to  other  cases.  Where,  in  the  action  against 
the  agent,  the  breach  of  duty  is  clear,  it  will,  in  the  absence  of  all 
evidence  of  other  damage,  be  presumed  that  the  party  has  sustained  a 
nominal  damage.  But  to  recover  more,  there  must  be  proof  of  real 
loss,  or  actual  damage  (Story  on  Agency,  §  217,  c).  It  is  a  good  de- 
fense that  the  misconduct  of  the  agent  has  been  followed  by  no  loss 
or  damage  to  the  principal,  for  then  the  rule  applies  that,  although  it 
is  a  wrong,  yet  it  is  without  any  damage,  and  to  maintain  an  action 
both  must  concur,  for  damnum  absque  injuria,  and  injuria  absque 
damno,  are  in  general  equally  objections  to  any  recovery  (Id.  §  236). 
Assuming  as  true,  what  the  defendants  offered  to  prove,  that  the 
goods  in  question  sold  for  their  full  value,  the  plaintiff  has  sustained 
no  loss,  and  should  have  recovered  nominal  damages  only.  If  this 
verdict  should  be  upheld,  lie  will  recover  damages  without  having 
sustained  injury,  and  be  placed  in  better  condition  than  if  his  instruc- 
tions had  been  obeyed. 

I  am  not  aware  that  any  considerations  of  public  policy  require 
the  application  to  the  present  case,  of  a  rule  which  produces  such  a 
result.  It  seems  to  have  been  thought  in  the  court  below,  that  if  the 
consignor  were  not  allowed  to  recover  according  to  this  rule,  it  would 
render  his  instructions  nugatory,  and  practically  annul  the  power  of 
the  owner  of  property  to  fix  a  price  below  which  it  should  not  be 
sold.  But  if  the  proof  offered  by  the  defendants  had  been  admitted, 
the  plaintiff  would  have  been  allowed  to  show  that  he  could  have  sold 
the  goods  to  better  advantage  by  reshipping  them  to  France  or  else- 
where, and  in  that  case  would  have  been  entitled  to  recover  accord- 
ingly. Or  if  the  market  price  of  such  goods  had  risen  after  the  sale 
made  by  the  defendants,  they  would  have  been  liable  to  pay  accord- 


BLOT   v.   BOICEAU   AND   RUSCH.  405 

ing  to  such  increased  value.  A  factor  thus  selling  goods  in  viola- 
tion of  his  instructions,  takes  upon  himself  the  hazard  of  loss  from 
the  fluctuations  in  the  market,  without  the  possibility  of  gain  ;  and 
this  is  practically  a  sufficient  security  against  the  disobedience  of 
his  principal's  order.  There  is  no  need  of  subjecting  him  to  a 
higher  penalty. 

There  is  a  direct  adjudication  on  this  point  in  12  New  Harnp. 
Rep.  239,  242,  in  the  case  of  Fro  thin  gham  v.  Evertson.  Evertson 
delivered  a  quantity  of  wool  in  the  month  of  March,  to  be  sold  at  not 
less  than  24  cents  the  pound.  Frothingham  made  advances.  The 
price  of  wool  fell  soon  after  the  consignment,  and  continued  to  fall 
until  October,  when  Frothingham,  without  calling  on  his  principal  to 
refund  the  advances,  and  without  notice  to  him,  sold  the  wool  at  14 
cents  the  pound,  which  was  all  it  was  then  or  afterwards  worth.  It 
was  held,  in  an  able  opinion  delivered  by  Chief  Justice  Paeker,  that 
the  measure  of  damages  was  the  amount  of  injury  sustained  by  the 
sale  contrary  to  the  orders  of  the  principal,  and  that  no  actual  loss  ap- 
pearing to  have  been  sustained  by  the  wrongful  act  of  the  factor,  the 
principal  was  entitled  only  to  nominal  damages.  The  present  case 
should  be  governed  by  the  same  principle. 

The  judgment  of  the  Superior  Court  should  therefore  be  reversed, 
and  a  new  trial  awarded. 

Beonson,  J. — The  consignees  had  no  right  to  sell  the  goods  below 
the  price  mentioned  in  their  instructions  from  the  consignor,  without 
first  calling  on  him  for  the  reimbursement  of  their  advances.  As  no 
such  demand  was  made,  the  defendants  are  liable  to  an  action,  and 
must  pay  nominal  damages,  at  the  least.  In  settling  the  amount  of 
damages  in  such  cases,  if  there  is  no  proof  to  the  contrary,  the  price 
mentioned  in  the  instructions  should,  I  think,  be  deemed  the  true 
value  of  the  goods.  But  the  consignor  would  be  at  liberty  to  enhance 
the  damages,  by  proving  that  the  goods  were  worth  more  than  the 
minimum  price  w7hich  he  had  put  upon  them  ;  and  I  see  no  reason 
why  the  consignee  should  not  be  allowed  to  reduce  the  damages,  by 
showing  that  the  goods  were  of  less  value  than  the  price  mentioned 
in  the  instructions.  If  the  goods  were  sold  at  their  full  value,  the 
consignor  has  sustained  no  damage,  and  should  recover  only  a  nominal 
sum.  The  factor  should  be  required  to  give  strong  proof  for  the  pur- 
pose of  showing  the  market  value  to  be  less  than  the  instruction 
price;  but  he  may,  I  think,  give  the  proof,  if  he  can.  Clearly  the 
consignor  has  sustained  no  damage  beyond  the  difference  between  the 
actual  value  and  the  price  obtained  on  the  sale;  and  I  see  no  ground 
for  making  this  case  an  exception  to  the  general  rule,  which  gives  the 


406  PRINCIPAL   AND   AGENT. 

injured  party  compensation  for  the  pecuniary  loss  which  he  has  sus- 
tained, and  nothing  more.  In  Frothingham  v.  Evertson  (12  1ST.  Ramp. 
239),  the  court  held  that  the  measure  of  damages,  in  cases  of  this  kind, 
is  the  amount  of  injury  which  the  consignor  has  sustained  by  selling 
contrary  to  orders  ;  and  if  there  has  been  no  actual  loss,  he  will  only 
'be  entitled  to  nominal  damages.  I  think  this  a  sound  rule  ;  and  am 
not  aware  of  any  case  which  holds  a  different  doctrine. 

It  is  said  that  this  rule  of  damages  will  enable  factors  to  violate 
the  instructions  of  their  principals  with  impunity.  But  that  is  a  mis- 
take. If  they  sell  below  the  instruction  price,  though  at  the  then 
market  value,  they  will  take  the  peril  of  a  rise  in  the  value  of  the 
goods  at  any  time  before  an  action  is  brought  for  the  wrong ;  and, 
perhaps,  down  to  the  trial.  The  owner  has  a  right  to  keep  his  goods 
for  a  better  price  ;  and  if  the  market  value  advances  after  the  wrong- 
ful sale,  the  increased  price  will  form  the  standard  for  ascertaining 
his  loss,  which  the  factor  who  has  departed  from  instructions  must 
make  good. 

If  it  be  a  matter  of  any  moment  in  this  action,  there  is  no  room 
for  doubt  that  the  defendants,  though  they  mistook  the  law,  in- 
tended to  act  in  entire  good  faith  towards  their  principals.  And 
if  the  evidence  which  they  offered  had  been  received,  it  would  have 
appeared  that  the  plaintiff,  instead  of  suffering  loss,  was  benefited  by 
the  sale. 

When  the  consignment  is  of  articles  which  have  no  market 
value,  such,  for  example,  as  antique  paintings,  statues  or  vases,  the 
rule  which  has  been  mentioned  will  not  apply.  In  this  case,  the 
_goods  had  a  market  value,  which  could  easily  be  ascertained. 

I  am  of  opinion  that  the  court  erred  in  rejecting  evidence, 
and  in  the  rule  which  it  gave  concerning  the  measure  of  damages. 

Judgment  reversed. 

Note. — In  an  action  against  a  railroad  company  to  recover  damages  sustained 
by  the  plaintiff,  iu  leading  money  on  stock  fraudulently  issued  by  the  treasurer, 
it  was  held  that  the  jury  in  assessing  the  plaintiff's  damages,  might  give  him  the 
sum  lent  by  him,  with  interest,  if  they  should  think  proper  to  give  interest,  or 
so  much  of  said  sum  and  interest  as  they  might  find  to  have  been  the  value  of 
the  stock,  under  all  the  circumstances,  at  the  date  of  the  loan  (Tome  v.  Parkers- 
burg  Branch  R.  R.  Co.  39  Md.  36,  1873). 


MOODY  v.   LEVERICH.  407 


MASTER  AND  SERVANT. 

Master  and  Servant  ;  Wrongful  Discharge  ;  Constructive  Serv 
ice  ;  Damages  beyond  Wages  Due  at  Time  of  Discharge. 


court  of  common  pleas,  for  the  city  and  county  of  NEW  YORK. 
[1873.]         Moody  v.  Levekich  et  al.  (4  Daly,  401). 

A  servant  wrongfully  discharged  by  his  master  cannot  wait  till  the  expiration  of  the 
period  for  which  he  was  hired,  and  then  sue  for  his  whole  wnges  on  the  ground  of  a 
constructive  service.  His  only  remedy  is  an  action  for  the  breach  of  the  contract  of 
hiring. 

When  wrongfully  dismissed,  he  is  restricted  either  to  an  action  to  recover  for  the  services 
actually  rendered,  or  to  a  general  action  for  damages  for  the  breach  of  the  contract ; 
in  which  he  may  recover  any  amount  due  for  services,  and  also  compensation  for 
damages  sustained  by  the  further  breach  of  the  contract,  in  wrongfully  dismissing 
him. 

Appeal  by  defendant  from  a  judgment  of  the  general  term  of  the 
Marine  Court,  affirming  a  judgment  entered  upon  the  decision  of  a 
judge  at  trial  term. 

The  action  was  brought  October  28th,  1870,  to  recover  wages  due, 
and  the  complaint  alleged  that  the  plaintiff  had  been  hired  by  the  de- 
fendants to  act  as  superintendent  of  certain  machine  works  for  a  year 
from  March  23d,  1870,  at  the  yearly  salary  of  $3,000,  payable  in 
monthly  installments,  payable  at  the  expiration  of  each  month.  That, 
on  August  1st,  1870,  he  was  wrongfully  discharged.  That  he  had 
always  held  himself  ready  and  willing  to  perform  the  services  for 
which  he  was  engaged,  but  that  the  defendants  had  refused  to  allow 
him  to  do  so.  That  he  had  not  been  paid  for  any  services  rendered 
since  June  23d,  1870.  That  on  September  23d,  1870,  there  was  due 
him  $250,  and  on  October  23d,  1870,  the  further  sum  of  $250,  mak- 
ing a  total  of  $500,  which  he  claimed  to  recover. 

The  defendants,  by  their  answer,  set  up  as  a  bar  to  the  action  that, 
on  September  5th,  1870,  the  plaintiff  had  commenced  an  action  in  the 
Marine  Court  for  the  same  cause  of  action,  to  wit,  the  wrongful  dis- 
missal of  the  plaintiff  by  the  defendants  on  August  1st,  1870,  and 
therein  had  claimed  to  recover  his  salary  for  the  months  ending  July 
23d,  and  August  23d,  1870,  and  that  in  that  action  he  had  recovered 
a  verdict  for  the  amount  claimed  less  an  admitted  counter-claim  due 
from  the  plaintiff  to  the  defendants,  to  wit,  $500  less  the  sum  of 
$32  96.     On  the  trial  the  facts  appeared  as  stated  in  the  pleadings.  A 


408  MASTER   AND   SERVANT. 

motion  was  made  by  the  defendant  to  dismiss  the  complaint,  upon  the 
ground  that  the  plaintiff  had  recovered  judgment  against  the  defend- 
ants for  damages  for  a  breach  of  the  same  contract  set  up  in  the  com- 
plaint, and  for  the  same  cause  of  action,  to  wit,  the  wrongful  dismissal 
of  the  plaintiff  by  the  defendants,  and  their  refusal  to  permit  him  to. 
render  further  services. 

The  motion  was  denied,  and  the  defendants  excepted. 

The  judge  rendered  a  decision  in  favor  of  the  plaintiff  for  the 
amount  claimed. 

By  the  Court,*  Daly,  Ch.  J. — This  action  is  founded  upon  the 
assumption  that,  if  the  contract  for  the  hiring  of  the  servant  is  for  a 
year,  at  a  salary  payable  in  monthly  installments,  and  the  master 
wrongfully  dismisses  the  servant  before  the  expiration  of  the  year,  the 
servant,  after  his  dismissal,  may  sue  for  and  recover  each  installment 
as  it  becomes  due,  if  be  has  held  himself,  during  the  time,  ready  and 
willing  to  render  the  service  contracted  for.  That  there  is,  in  other 
words,  in  such  a  case,  a  constructive  service  on  the  part  of  the  servant. 

This  idea  of  a  constructive  service  is  founded  upon  a  decision  of 
Lord  Ellenboeough  (Gandell  v.  Pontigny,  4  Camp.  375),  where  a 
servant  having  been  discharged  before  the  expiration  of  the  quarter 
for  which  he  had  been  engaged,  Lord  Ellenboeough  said  that  as  the 
plaintiff  had  served  a  part  of  the  quarter,  and  been  willing  to  serve 
for  the  residue,  he  might,  in  contemplation  of  law,  be  considered  to 
have  served  the  whole. 

This  was  merely  a  nisi  jprius  decision,  and  whatever  weight  it 
may  have  derived  from  the  eminence  of  Lord  Ellenboeough,  it  pos- 
sesses no  longer ;  for,  as  a  rule  of  law,  it  must  now  be  regarded  as  re- 
pudiated. 

In  Archard  v.  ITornor  (3  Car.  &  Pay.  349)  it  was  held,  that  if  the 
servant  is  turned  away  improperly  before  the  end  of  the  year  for 
which  he  was  engaged,  he  cannot  recover  upon  a  count  stating  the 
contract  to  be  one  for  an  entire  year,  and  that  if  he  sues  for  wages 
under  the  contract,  he  can  recover  only  for  the  period  during  which 
he  served.  In  other  words,  if  he  sues  upon  the  contract,  for  the 
wages  contracted  for,  performance  is  essential  to  a  recovery. 

In  Smith  v.  Ilaynar  (7  Ad.  tfe  El.  544),  the  court  approved  the  de- 
cision in  Archard  v.  Iiornor.  The  four  judges  who  delivered  opinions 
expressed  their  dissatisfaction  with  Lord  Ellenboeough's  decision  in 
Gandell  v.  Pontigny.  Lord  Denman  said  that  Archard  v.  Iiornor 
was  grounded  on  the  better  reason.     Williams,  J.,  that  it  had  more 

*  Preseut,  Daly,  Ch.  J.,  Robinson,  and  J.  F.  Daly,  JJ. 


MOODY   v.   LEVERICH.  40O 

reason  and  authority  to  support  it.  Patterson,  J.,  declared  that  if  it 
were  necessary  to  choose  between  the  two,  he  should  prefer  Archard 
v.  Hornor,  and  Coleridge,  J.,  said  that  he  was  not  satisfied  with  the 
decision  in  Gandell  v.  Pontigny. 

A  few  years  afterwards  the  case  of  Aspen  v.  Austin  (5  Ad.  &  El. 
N.  S.  691)  came  up  in  the  same  court.  It  was  an  action  for  a  breach 
of  covenant  in  wrongfully  dismissing  the  plaintiff,  whom  the  defend- 
ant had  covenanted  to  employ  for  a  certain  period,  at  a  fixed  weekly 
salary.  Lord  Denman  said  that  the  defendant  had  covenanted  to  pay 
weekly  sums  to  the  plaintiff  for  three  years,  on  condition  of  the 
plaintiff  performing  what  was,  on  his  part,  a  condition  precedent ;  and 
that  the  plaintiff  would  be  entitled  to  recover  these  sums,  whether  he 
performed  the  condition  or  not,  if  he  were  ready  and  willing,  and  of- 
fered to  perform  it,  but  was  prevented  by  the  defendant  from  doing  it. 

This  was  sixteen  years  after  the  decision  of  Archard  v.  Hornor, 
and  seven  years  after  Lord  Denman  and  his  associates  had,  in  Smith 
v.  Hayward,  approved  Archard  v.  Hornor.  It  was  a  decision  upon 
the  pleadings,  and  from  what  followed  in  the  same  and  other  courts 
afterwards,  I  presume  that  Lord  Dexman  did  not  give  much  consid- 
eration to  the  point,  as  judgment  was  given  for  the  defendant  upon 
the  pleadings,  and  the  point  was  therefore  not  directly  involved. 

In  Fewing  v.  Tisdall  (1  Exch.  R.  295),  the  servant  was  dismissed 
without  a  month's  warning,  and  her  wages  being  paid  only  up  to  the 
time  of  her  dismissal,  she  brought  an  action  to  recover  a  month's 
wages,  commencing  from  the  day  of  her  dismissal.  It  was  held,  that 
the  action  could  not  be  maintained  ;  all  the  judges  agreeing  that  Ar- 
chard v.  Hornor,  which,  Pollock,  C.  B.,  said,  was  recognized  by  all 
the  courts,  was  decisive  of  the  case. 

In  Elderton  v.  Emmons  (6  Man.  Gr.  &  Scott,  ITS),  Baron  Parke 
said,  that  to  hold,  where  the  employer  determined  the  relation  by  a 
wrongful  dismissal,  that  the  servant  may  entitle  himself  to  wages  for 
the  whole  term,  by  being  ready  to  serve,  was  a  doctrine  that,  if  sanc- 
tioned, would  be  of  pernicious  consequences. 

In  the  note  of  Mr.  Smith,  to  Cutter  v.  Powell  (2  Smith's  Leading 
Cases,  20),  that  learned  commentator  states  three  remedies  that  a  serv- 
ant has,  who  has  been  wrongfully  dismissed ;  the  second  of  which  he 
states  as  follows :  "  2.  He  may  wait  till  the  termination  of  the  period 
for  which  he  was  hired,  and  may  then  perhaps  sue  for  his  whole 
wages  in  indebitatus  assumpsit,  relying  on  the  doctrine  of  con- 
structive service,"  for  which  he  cites  Lord  Ellexborodgh's  decision  in 
Gandell  v.  Pontigny. 

In  Goodman  v.  Pocock  (15  Ad.  &  El.  N.  S.  582),  Patterson,  J., 


410  MASTER   AND   SERVANT. 

said  that  Mr.  Smith  had  very  properly  expressed  himself  with  hesita- 
tion as  to  this  second  proposition  ;  and  Erle,  J.,  in  referring  to  it, 
said,  "  I  think  the  servant  cannot  wait  till  the  expiration  of  the  period 
for  which  he  was  hired,  and  then  sue  for  his  whole  wages,  on  the 
ground  of  a  constructive  service  after  dismissal.  I  think  the  true 
measure  of  damages  is  the  loss  sustained  at  the  time  of  dismissal." 

In  Whi taker  v.  Sandifer  (1  Duval  [Ky.]  261),  and  in  Chamber- 
tine  v.  McAllister  (6  Dana  [Ky.]  352),  C.  J.  Robertson,  a  very  emi- 
nent judge,  held  that  readiness  and  willingness  to  perform,  after  a 
wrongful  discharge,  was  not  equivalent  to  full  performance,  and  that 
all  the  employee  was  entitled  to  recover  was  the  actual  damages  he  sus- 
tained for  the  disappointment  and  loss  of  equally  profitable  employ- 
ment. 

In  Clark  v.  Marsiglia  (1  Den.  317),  the  defendant  delivered  to  the 
plaintiff  a  number  of  paintings  to  be  cleaned  and  repaired,  at  a  certain 
price  for  each,  and  after  the  plaintiff  had  proceeded  to  a  certain  ex- 
tent in  the  work  the  defendant  countermanded  it,  but  the  plaintiff 
went  on,  finished  the  cleaning  and  repairing  of  the  pictures,  and  re- 
covered in  this  court  the  full  contract  price.  The  judgment  was  re- 
versed upon  the  ground  that  all  that  the  plaintiff  could  recover  was  a 
recompense  for  the  labor  done  and  materials  used  when  the  counter- 
mand was  given,  and  such  further  sum  in  damages  as  might,  upon  le- 
gal principles,  be  assessed  for  the  breach  of  the  contract.  And  in 
Durkee  v.  Mott  (8  Barb.  423),  an  analogous  case,  a  like  rule  was  ap- 
plied. I  cite  these  two  cases,  though  not  strictly  cases  between  mas- 
ter and  servant,  because  they  come  under,  and  serve  to  illustrate,  a 
rule  in  the  law  of  contracts,  which  is  as  applicable  to  the  contract  be- 
tween master  and  servant  as  to  any  other. 

I  might  pursue  this  examination  by  citing  many  cases,  both  in  this 
country  and  in  England,  that  are,  by  analogy,  inconsistent  with  this 
doctrine  of  constructive  service,  and  reasons  might  be  adduced  to  show 
that  there  never  was  any  foundation  for  it;  but  I  deem  it  sufficient  to 
rely  upon  the  authority  of  the  cases  above  cited,  to  show  that  it  is  now 
wholly  repudiated. 

In  Thompson  v.  Wood  (1  Hilt.  96),  my  former  colleague,  Judge 
Ingraham,  said  that  a  servant  wrongfully  discharged  had  his  election 
to  sue  for  his  wages  as  they  became  due  from  time  to  time,  or  to  bring 
an  action  for  damages.  That  if  he  recovered  damages  it  estopped  him 
from  bringing  any  other  action ;  but  that  if  his  action  was  for  wages 
due  when  the  action  was  brought,  it  did  not  estop  him  from  bringing 
another  action  for  wages  subsequently  payable,  or  an  action  for  dam- 
ages for  the  subsequent  breach  of  the  agreement, 


MOODY   v.   LEVERICH.  411 

It  may  be  said,  in  respect  to  this  case,  that  the  question  of  con- 
structive service  was  not  necessarily  involved,  as  in  the  action  set  up 
as  a  bar,  the  plaintiff  recovered  only  for  the  wages  due  at  the  time  of 
his  discharge,  which  the  court  held  was  no  bar  to  the  second  action, 
and  it  may  have  been  treated  as  an  action  for  damages  for  the  breach 
of  the  contract  in  discharging  the  plaintiff  before  the  expiration  of 
the  year ;  for  although  the  claim  was  to  recover  two  months'  salary, 
the  action  is  referred  to,  by  Judge  Ingraham,  as  an  action  for  dam- 
ages. The  referee  in  that  case  reported  in  the  plaintiff's  favor  for 
the  full  amount  of  the  salary,  and  in  an  action  for  damages  the  salary 
may,  in  the  discretion  of  the  jury  or  referee,  be  taken,  in  the  particu- 
lar case,  as  an  adequate  and  proper  measure  of  damages  (Smith  v. 
Thompson,  8  Man.  Gr.  &  Scott,  44).  What  Judge  Ingraham  said, 
therefore,  in  respect  to  the  right  of  a  servant  wrongfully  dismissed,  to 
sue  thereafter  for  his  salary  from  time  to  time,  as  it  becomes  due,  may 
be  regarded  as  a  dictum,  and  as  no  authorities  for  this  proposition  are 
referred  to  by  him,  I  infer  that  he  stated  the  law  as  he  supposed  it  to 
be,  upon  the  authority  of  Lord  Ellenborough's  decision  in  Gandell 
v.  Pontigny,  and  that  his  attention  was  not  called  to  the  subsequent 
cases  impeaching  the  soundness  of  that  decision. 

In  Heim  v.  Wolf  (1  E.  D.  Smith,  73),  my  late  colleague,  Judge 
Woodruff,  stated  the  law  much  more  in  accordance  with  these  subse- 
quent cases.  He  said,  "  Where  the  employer  discharges  the  person 
from  his  employ,  he  may  wait  until  his  wages  become  due,  and  then 
recover  them  ;  but  that  rule  is  to  be  taken  with  restrictions.  He  re- 
covers, not  for  services  rendered,  but  damages  for  breaking  the  con- 
tract, by  discharging  him  before  the  termination  of  his  agreement — 
that  is,  for  refusing  to  employ  and  pay  him  according  to  the  contract. 
If  it  appears  that  he  was  idle  and  could  not  obtain  other  employment, 
his  damages  would  be  the  whole  compensation  agreed  on ;  but  if  he 
obtains  employment,  then  he  is  entitled  only  to  a  partial  recovery." 

In  Huntington  v.  The  Ogdensburg,  &c.  Railroad  Co.  (33  How.  Pr. 
41G),  the  plaintiff  was  employed  for  a  fixed  period  at  a  monthly  sal- 
ary, payable  on  the  first  of  every  month.  Before  the  expiration  of 
the  period  agreed  upon,  and  on  the  sixth  day  of  the  month  of  June, 
he  was  dismissed  by  the  defendants,  against  which  he  protested,  and 
offered  to  continue  his  services.  The  plaintiff  brought  an  action  to  re- 
cover his  salary  for  the  month  of  June,  and  it  appearing  that  he  had 
obtained  other  employment  during  the  month,  Potter,  J.,  said : 
"  The  plaintiff's  right  in  this  action,  as  I  understand  the  law,  is  not  for 
services  actually  rendered,  but  as  for  services  offered  to  be  performed, 
which  the  defendants  refused  to  receive,  and  that  thereby  the  plaintiff 


412  MASTER   AND   SERVANT. 

is  entitled  to  recover  the  amount  of  wages  he  was  to  receive  by  virtue 
of  his  contract.  *  *  *  If  he  seeks  and  finds  employment,  as 
seems  to  be  his  legal  and  moral  duty,  then  the  damages  he  would 
otherwise  be  entitled  to  recover  by  reason  of  the  breach,  are  to  be 
diminished  or  regulated  by  his  actual  loss,  depending  upon  the  actual 
value  to  him  of  the  benefits  obtained,  or  to  be  obtained,  from  such 
new  employment."  Although  the  law,  as  stated  in  the  outset  of 
these  remarks,  is  not  in  accordance  with  the  authorities  that  have  been 
cited,  the  conclusion  is  correct  that  the  month's  wages  may  be  the 
proper  measure  of  damages,  less  the  value  of  the  employment  ob- 
tained by  the  plaintiff  during  the  month  ;  treating  the  action  as  one 
for  the  recovery  of  damages  for  the  breach  of  the  contract  in  wrong- 
fully dismissing  the  plaintiff,  and  not  for  the  recovery  of  a  month's 
wages  upon  the  contract,  the  plaintiff  having  been  dismissed  before 
the  wages  for  the  month  had  been  earned. 

In  Van  Alstyne  v.  The  President,  &c.  of  the  Indiana,  &c.  Rail- 
road Co.  (34  Barb.  28),  the  plaintiff  was  employed  for  a  year  at  a 
monthly  salary.  During  the  year  the  plaintiff  was  discharged  at  his 
own  request,  the  agreement  was  vacated  by  mutual  consent,  and  the 
plaintiff  was  paid  up  in  full  on  the  day  when  he  left.  He  afterwards 
sued  the  defendants  for  two  months'  salary  accruing  after  he  left,  and 
obtained  judgment  by  default.  He  then  brought  another  action  to 
recover  his  salary  for  the  two  months  ensuing,  and  the  court  held  that 
the  defendants,  by  suffering  the  previous  judgment  to  go  by  default, 
were  not  precluded  from  setting  up  in  the  second  action  that  the 
agreement  for  the  year's  service  had  been  vacated  by  mutual  consent. 
The  plaintiff  in  the  case  now  before  us  relies  strongly  upon  this  case ; 
but  I  do  not  see  that  it  has  any  material  bearing  upon  the  question 
under  consideration. 

Regarding  it  as  settled,  upon  the  authority  of  the  cases  which  I 
have  cited,  that  there  can  be  no  recovery  of  the  wages  stipulated  for 
by  the  contract,  except  where  the  services  contracted  for  have  been 
rendered,  it  follows  that  the  remedy  which  the  servant  has  for  any 
loss  or  injury  he  may  sustain  by  his  wrongful  dismissal  before  the  ex- 
piration of  the  period  for  which  he  was  engaged,  is  a  general  action 
for  damages.  If  at  the  time  of  his  discharge  any  amount  is  due  by 
the  terms  of  the  contract,  he  may  of  course  sue  upon  the  contract  and 
recover  it  (Archard  v.  Hornor,  supra  ;  Peck  v.  Burr,  10  N.  Y.  294). 
If,  by  the  contract,  his  wages  are  payable  by  the  month,  or  the  quarter, 
and  by  being  dismissed  before  the  period  arrives  he  is  unable  to  ren- 
der the  services  which,  by  the  terms  of  the  contract,  entitle  him  to 
the  monthly  or  quarterly  stipend,  he  may,  if  he  thinks  proper,  treat 


MOODY   v.   LEVERIOH.  413 

the  contract  as  rescinded,  and  sue  to  recover  for  the  value  of  the  serv- 
ices actually  rendered  ;  or  he  may  bring  an  action  to  recover  damages 
for  the  breach  of  the  contract ;  and  in  that  action  any  installment  that 
may  have  become  due  to  him  by  the  terms  of  the  contract,  or  the 
value  of  the  services  rendered  up  to  the  time  of  his  discharge  (where 
he  is  discharged  before  the  expiration  of  the  month  or  quarter),  will 
be  taken  into  account  and  allowed  him  in  adjusting  the  measure  of 
his  damages ;  but  if  he  were  fully  paid  up  to  the  time  of  his  dis- 
charge, then  the  sole  measure  of  his  damages  will  be  the  loss  or  injury 
occasioned  by  the  breach  of  the  contract  (Classman  v.  Lacaste,  28  Eng. 
L.  &  Eq.  130  ;  Goodman  v.  Pocock,  15  Ad.  &  El.  K  S.  576  ;  Hochster 
v.  De  La  Tour,  2  E.  &  Bl.  691 ;  French  v.  Brookes,  6  Bing.  354 ; 
Smith  v.  Thompson,  6  Man.  Gr.  &  Scott,  44 ;  Emmons  v.  Elderton, 
4  House  of  Lords  Cases,  624,  on  appeal,  and  in  4  Man.  Gr.  &  Scott, 
479,  and  in  6  Id.  160  ;  Smith's  Law  of  Master  and  Servant,  p.  94, 
notes  9,  99,  100  ;  Mayne  on  Damages,  pp.  107,  108,  109). 

In  this  action  ample,  full,  and  final  satisfaction  is  obtained,  and 
the  jury,  therefore,  in  assessing  the  damages,  would  be  justified,  in 
the  language  of  Lord  Campbell,  "  in  looking  at  all  that  had  happened, 
or  was  likely  to  happen,  to  increase  or  mitigate  the  loss  of  the  plaint- 
iff down  to  the  day  of  trial "  (Hochster  v.  De  La  Tour,  supra).  In 
this  action,  he  recovers  all  the  damages  he  suffers  by  the  breach  of  the 
contract,  or  that  may  ensue  to  him  in  consequence  of  it,  and  any 
amount  that  may  be  due  to  him  by  the  terms  of  the  contract,  and  the 
value  of  any  unrequited  service  he  may  have  rendered  up  to  the  day 
of  his  discharge.  This  is,  therefore,  the  appropriate  remedy.  He 
cannot  pursue  both — that  is,  he  cannot  sue  upon  a  quantum  meruit 
for  the  services  actually  rendered  and  also  have  an  action  for  damages  ; 
because  by  bringing  the  first  action  he  treats  the  contract  as  re- 
scinded, and  because  he  can  have  but  one  action  where  the  claims 
have  all  accrued  and  all  grow  out  of  the  same  contract  (Colburn  v. 
Wood  worth,  31  Barb.  382;  Bendernagle  v.  Cocks,  19  Wend.  207; 
Guernsey  v.  Carver,  8  Id.  492  ;  Goodman  v.  Pocock,  15  Ad.  &  El. 
K  S.  576  ;  Classman  v.  Lacaste,  28  Eng.  Law  &  Eq.  K.  p.  141).  The 
good  sense,  justice,  and  propriety  of  the  latter  rule — that  there  ought, 
in  such  a  case,  to  be  but  one  action — is  to  my  mind  very  apparent, 
and  is  sustained  by  the  authority  of  the  cases  above  cited ;  but  it  must 
be  regarded  in  this  State,  at  least,  as  somewhat  unsettled,  since  the 
opinions  expressed  by  Justice  Strong,  in  Secor  v.  Sturgis  (16  N.  Y. 
548),  and  by  Justice  Wells,  in  Mcintosh  v.  Lown  (49  Barb.  550). 

The  general  view  of  the  law  which  I  have  expressed,  and  which 
has  been  arrived  at  after  an  examination  of  the  various  authorities 


414:  MASTER   AND   SERVANT. 

brought  to  our  attention  by  the  learned  professor*  who  argued  this 
case  with  so  much  ability  on  the  part  of  the  defendant,  is,  in  my  judg- 
ment, the  only  one  that  can  be  reconciled  with  the  rule  before  stated, 
that  there  can  be  no  recovery  of  the  wages  stipulated  for  in  the  con- 
tract, unless  the  services  contracted  for  were  performed  ;  and  another 
rule  equally  well  settled  in  this  State  and  in  England,  that  it  is  obli- 
gatory upon  the  servant,  when  wrongfully  discharged,  to  use  diligence 
to  find  other  employment  (Emmons  v.  Elderton,  4  House  of  Lords 
Cases,  646 ;  Costigan  v.  Mohawk,  &c.  R.  R  Co.  2  Den.  609 ;  Dillon 
v.  Anderson,  43  K  Y.  231 ;  Hamilton  v.  McPherson,  28  Id.  76) ;  a 
rule  which  is  certainly  not  consistent  with  the  servant's  remaining 
ready  and  willing,  after  his  discharge,  to  fulfill  the-  contract  on  his 
part.  These  rules,  however,  can  be  fully  carried  out  and  harmonized 
where  the  servant  wrongfully  dismissed  is  restricted,  either  to  an  ac- 
tion to  recover  for  the  services  actually  rendered,  or  to  a  general  ac- 
tion for  damages  for  the  breach  of  the  contract,  in  which  he  may  re- 
cover any  amount  due  for  services  rendered  (for  the  non-payment  of 
it  is  a  breach  of  the  contract),  and  also  compensation  for  the  damages 
sustained  by  the  further  breach  of  the  contract  in  wrongfully  dismiss- 
ing him. 

The  first  action  which  the  plaintiff  brought  must  be  regarded  as  an 
action  of  this  description,  for  he  alleged  that  from  the  23d  of  March 
to  the  1st  of  August,  1870,  he  continued  to  render  his  services  and  to 
devote  his  time  and  skill,  as  he  had  agreed  to  do,  at  the  monthly  sal- 
ary of  two  hundred  and  fifty  dollars  ;  and  that  after  the  1st  of  Au- 
gust, 1870,  the  defendants,  without  cause  or  provocation,  hindered 
and  prevented  him  from  rendering  any  further  service.  Upon  these 
allegations  he  claimed  to  recover  $250,  as  due  by  the  terms  of  the  con- 
tract, for  services  rendered  from  the  23d  of  June  to  the  23d  of  July, 
and  the  same  sum  for  the  ensuing  month,  ending  on  the  23d  of  Au- 
gust. He  recovered  $473  02,  and  (as  he  rendered  no  service  after 
the  1st  of  August),  $223  02  of  this  amount  must  have  been  recovered 
as  damages  to  compensate  him  for  the  eight  days'  service  from  the 
23d  of  July  to  the  1st  of  August,  and  for  the  breach  of  the  contract 
thereafter  in  wrongfully  dismissing  him. 

A  judgment  in  favor  of  the  plaintiff  for  this  $223  02  could,  by  the 
law,  have  been  given  upon  no  other  ground.  It  was  a  recovery  of 
damages  for  the  breach  of  the  contract,  and  was  a  bar  to  any  further 
action  upon  the  contract.  The  judgment  of  the  Marine  Court,  there- 
fore, should  be  reversed. 

Judgment  reversed. 

*  Theodore  W.  Dwight,  Professor  in  the  Columbia  College  Law  School. 


POLK   v.   DALY.  415 


Master  and  Servant  ;  Duty  of  Discharged  Servant  ;  Offer  of 

Performance. 


COURT  OF  COMMON  PLEAS,  FOR  TIIE  CITY  AND  COUNTY  OF  NEW  YORK. 

[1873.]  Polk  v.  Daly  (4  Daly,  411). 

riaintiff  was  engaged  to  perform  as  an  actor  at  a  certain  theater  for  a  definite  time,  and 
at  a  fixed  salary,  but  was  discharged  before  the  period  for  which  he  was  engaged 
had  elapsed.  He  denied  the  defendant's  right  to  discharge  him,  and  offered  per- 
formance on  his  part,  which  was  not  accepted.  He  then  left  the  city,  and  remained 
absent  until  the  period  for  which  he  was  engaged  had  expired,  and  did  not,  during 
that  period,  hold  himself  in  readiness  to  render  his  services  according  to  the  con- 
tract, nor  did  he  make  any  efforts  to  obtain  other  employment.  Held,  that  he  was 
not  entitled  to  recover  anything  but  the  wages  due  him  up  to  the  time  of  his  de- 
parture. . 

Appeal  by  defendant  from  a  judgment  entered  on  the  verdict  of 
a  pry. 

Action  for  wages.     The  facts  are  stated  in  the  opinion. 

By  the  Court*  Robinson,  J. — This  action  was  on  a  contract  for 
the  plaintiff's  services  as  an  actor  in  defendant's  theater,  from  Septem- 
ber 15th,  1870,  to  June  1st,  1871,  at  a  salary  of  $65  a  week  and  a 
benefit,  to  consist  either  of  one-third  the  gross  receipts,  or  the  net 
proceeds  of  the  benefit  night's  receipts. 

It  was  brought  in  September,  1871,  and  the  plaintiff,  in  his  com- 
plaint, alleged  he  was  wrongfully  discharged  on  the  4th  of  April,  and 
that  he  was  unable  thereafter  to  procure  other  employment.  He  did 
not,  however,  allege  performance  or  a  tender  thereof,  or  a  readiness 
to  perform  any  service  during  the  period  for  which  such  salary  is 
claimed,  but  asked  to  recover,  firstly,  salary  of  $65  per  week  for  eight 
and  a  half  weeks,  and,  secondly,  the  sum  of  $300  for  the  night's  bene- 
fit, of  which  he  claimed  to  have  been  deprived  by  defendant's  refusal 
to  afford  it  to  him.  The  answer,  after  a  general  denial  as  to  other 
matters,  admitted  the  contract ;  justified  the  discharge  under  an  al- 
leged breach  of  plaintiff's  obligations  by  his  refusal  to  perform  parts 
in  plays  or  characters  assigned  him  ;  alleged  that  plaintiff  thereupon 
left  the  city,  and  remained  in  or  near  Baltimore,  in  the  State  of 
Maryland,  during  the  remainder  of  the  season,  and  did  not,  at  any 
time  after  his  discharge,  perform  or  offer  to  perform  his  contract. 
The  jury,  under  unexceptionable  instructions  from  the  court  in  that 

*  Present,  Daly,  Ch.  J.,  Robinson  and  Loew,  JJ. 


416  MASTER   AND   SERVANT. 

respect,  found  the  plaintiff  was  justified,  under  his  contract  of  serv- 
ice with  the  defendant  as  an  actor,  in  refusing  to  act  in  a  part  assigned 
him  inferior  to  the  role  of  characters  which  he  had  agreed  to  represent, 
and  that  he  was  discharged  from  his  employment  without  just  cause. 
For  this  he  was  awarded  in  the  court  helow  $688  10  as  compensation 
at  the  contract  rate  ($65  per  week),  as  for  full  performance,  with  some 
addition  for  the  benefit. 

Upon  his  discharge  on  the  4th  of  April,  the  plaintiff,  by  letters  of 
the  4th  and  6th  of  that  month,  denied  defendant's  right  to  discharge 
him,  and  offered  performance  on  his  part,  which  was  not  accepted. 
"  About  a  week  afterwards  he  left  the  city  and  went  to  Baltimore, 
and  for  the  remainder  of  the  period  of  his  engagement  spent  his  time 
there  or  in  Virginia.  He  went  a-fishing."  Subsequent  to  his  dis- 
charge he  made  no  effort  to  get  any  other  employment  in  his  line  of 
business.  The  justification  he  offers  for  this  is,  "  It  was  not  very 
easy  to  secure  employment  after  the  4th  of  April.  The  season  in 
New  York  theaters  had  almost  expired,  and  they  don't  engage  actors 
then.  I  don't  think  I  could  have  got  employment  of  my  standing  in 
any  theater."  Among  other  grounds  for  the  motion  to  dismiss  the 
complaint  were  these :  That  it  appeared  from  the  evidence  that  the 
plaintiff  made  no  sufficient  tender  or  offer  of  his  services  under  the 
contract ;  that  he  made  no  effort  to  secure  other  employment,  and 
placed  it  out  of  his  power  to  receive  employment  from  the  defend- 
ant and  others.  These  several  grounds  of  dismissal  were  over- 
ruled, and  defendant  excepted.  At  the  conclusion  of  the  testimony, 
defendant's  counsel  asked  the  court  to  charge,  that  the  plaintiff,  by 
leaving  the  city,  rendered  it  impossible  for  the  defendant  to  employ 
him,  and  to  this  the  court  responded,  "  If  you  (the  jury)  are  satisfied 
that  he  absented  himself  to  avoid  the  engagement,  then  he  cannot 
recover."  To  this  qualified  charge  no  exception  was  taken.  Defend- 
ant's counsel  further  requested  the  court  to  charge,  "  that  the  plaint- 
iff should  have  applied  for  employment  elsewhere,  and  cannot  recover 
if  he  neglected  to  do  so."  This  was  refused,  and  defendant  ex- 
cepted. Under  such  circumstances,  I  am  of  the  opinion  the  judg- 
ment cannot  be  sustained.  First.  Plaintiff  was  not  entitled  to  recover 
either  wages  for  services  rendered,  during  the  eight  weeks  following 
his  discharge,  or  damages  ensuing  from  his  unlawful  discharge,  com- 
putable upon  the  rate  of  such  weekly  wages,  except  upon  the  as- 
sumption that  he  made  and  sustained  such  a  tender  of  performance 
as  was  equivalent  to  actual  performance.  In  a  week  after  his  dis- 
charge he  left  the  city  for  the  Southern  States,  and  for  all  the  subse- 
quent period  of  his  engagement,  was  absent  at  the  South,  and  in  no 


FOLK  v.   DALY.  417 

way  tendered  his  services,  or  rendered  himself  subservient  to  the 
objects  of  the  contract,  or  to  any  such  use  of  his  services  as  it  con- 
templated. It  could,  in  no  respect,  be  held  that  he  earned  wages  for 
services  actually  rendered  in  the  employment  of  the  defendant  when 
he  was  engaged  in  his  own  pursuits  or  amusements  at  the  South, 
without  having  obtained  any  consent  or  license  of  the  defendant,  or 
having  given  the  defendant  any  notice  of  his  remaining  subject  to 
immediate  recall  when  wanted,  or  in  some  other  way  offering  or  con- 
tinuing a  tender  of  his  services  during  this  period.  There  are  certain 
contracts  in  respect  to  which  tender  of  performance  is  deemed  equiv- 
alent to  performance,  so  as  to  entitle  the  party  ready  to  perforin,  to 
sustain  an  action  for  such  compensation  as  full  performance  would 
have  insured  to  him ;  to  wit,  as  upon  an  agreement  for  the  sale  and 
purchase  of  real  estate,  where  the  vendor  has  tendered  a  conveyance 
(Shannon  v.  Comstock,  21  Wend.  160  ;  Richards  v.  Edick,  17  Barb. 
200,  and  cases  cited  p.  265)  ;  or  for  goods  sold,  delivery  whereof  has 
been  tendered  (Bement  v.  Smith,  15  Wend.  193  ;  Dustan  v.  McAn- 
drew,  41  X.  Y.  78,  and  cases  cited).  But  that  the  tendered  perform- 
ance should  stand  as  a  substitute  for  the  actual  can  only  be  maintained 
upon  the  ground  that  the  thing  agreed  to  be  sold  has  been  in  inde- 
pendent existence,  and,  the  corpus  not  being  perishable  or  change- 
able, the  title  has  so  far  passed  that  the  vendor  remains  but  the 
trustee  of  the  vendee  in  respect  to  it,  and  on  subsequent  payment  of 
the  price,  the  specific  thing  may  still  be  delivered  over  or  duly  ac- 
counted for  to  the  vendee  (Shannon  v.  Comstock,  supra).  On  such 
a  tender  the  vendor  assumes  to  preserve  with  ordinary  care  the  thing 
agreed  to  be  conveyed,  ready  for  transfer  on  compliance  by  the 
vendee  with  the  terms  of  purchase  (unless  he  chooses  to  exercise  his 
right  to  sell  under  his  vendor's  lien),  and  any  inconsistent  use  or 
diversion  of  it  amounts  to  an  abandonment  of  the  tender.  If  there 
exists  any  analogy  in  a  contract  for  the  hire  of  services,  where  the 
employee  has  been  unjustly  discharged,  his  tender  and  continued  offer 
and  readiness  to  perform  them,  and  his  reasonable  efforts  to  obtain 
other  employment,  or  his  entry  in  good  faith  into  other  employment, 
are  necessary  to  constitute  any  similitude  by  way  of  a  constructive 
performance  and  a  rendition  of  such  complete  service  to  the  purposes 
of  the  contract  as  it  calls  for  on  his  part. 

There  are  some  questionable  authorities  for  holding  such  construc- 
tive service  equivalent  to  actual  performance,  and  entitling  the  em- 
ployee to  accruing  wages  ;  but,  as  in  all  cases  of  tender,  it  is  neces- 
sary, in  order  to  constitute  it  a  substitute  for  actual  performance,  that 
it  should  be  maintained,  as  the  employer  has  a  locus  poenitentice,  and 
27 


418  MASTER   AND   SERVANT. 

in  avoidance  of  questions  of  responsibility  may  at  any  time,  while 
the  tender  is  preserved,  accept  performance.  In  the  present  case,  the 
departure  of  the  plaintiff  from  the  city  and  his  absence  for  the  eight 
weeks-  in  Maryland  and  Virginia,  engaged  in  his  own  pursuits,  with- 
out notice  to  defendant  of  his  whereabouts  or  address,  or  of  being 
subject  to  immediate  recall,  was  not  the  maintaining  of  any  such 
tender,  nor  did  it  show  a  case  of  readiness  at  all  times,  during  the 
period  of  the  contract,  to  render  the  service  for  which  the  plaintiff 
had  contracted.  Secondly.  In  all  cases  of  breach  of  contract,  it  be- 
comes the  active  duty  of  the  party  injured  to  make  reasonable  exer- 
tions to  render  the  damages  resulting  therefrom  as  light  as  possible. 
The  Court  of  Appeals,  in  Hamilton  v.  McPherson  (28  N.  Y.  76),  say : 
"The  law  for  wise  reasons  imposes  upon  a  party  subjected  to  injury 
from  a  breach  of  contract  the  active  duty  of  making  reasonable  exer- 
tions to  render  the  injury  as  light  as  possible.  Public  interest  and 
sound  morality  accord  with  the  law  in  demanding  this  ;  and  if  the 
injured  party,  through  negligence  or  willfulness,  allows  the  damages 
to  be  unnecessarily  enhanced,  the  increased  loss  falls  upon  him,  and 
he  can  recover  nothing  for  damages  which,  by  reasonable  diligence  on 
his  part,  could  have  been  prevented  "  (p.  77).  So,  also,  in  Dillon  v. 
Andrews  (43  N.  Y.  237),  they  say :  "  It  was  the  duty  of  the  plaintiff, 
as  soon  as  due  notice  was  given,  to  have  so  acted  as  to  save  the  de- 
fendant from  further  damages,  so  far  as  was  in  his  power."  With- 
out questioning  that  the  burden  of  proof  of  failure  in  this  respect 
was  thrown  upon  the  defendant  to  show  by  way  of  recoupment,  or  in 
mitigation  of  damages,  the  neglect  of  the  plaintiff  to  make  any  effort 
to  get  other  employment,  the  absence  of  any  such  effort  appeared  in 
his  own  testimony,  and  was  conceded.  His  statements  in  extenuation, 
that  it  was  not  very  easy  to  procure  such  other  employment,  and  he 
did  not  think  he  could  have  got  similar  employment,  presented  no 
justification  for  his  entire  omission  to  make  any  effort  whatever.  His 
obligation  in  that  respect  was  one  of  ordinary  but  active  diligence  ; 
and  his  conduct  suggests  the  natural  inquiry,  whether,  if  he  had  been 
discharged  for  cause,  he  would,  under  the  usual  exigencies  of  life  and 
its  claims  upon  him,  to  act  with  diligence  and  caution  in  earning  a 
livelihood  or  making  his  talents  available  and  profitable,  have  for 
eight  weeks  abandoned  every  effort  to  secure  any  employment,  or  to 
earn  any  money  in  the  line  of  his  profession,  and  "go  a-fishing?" 
Common  sense  fully  answers  the  question.  If  voluntarily  idle,  he 
failed  in  his  legal  and  moral  duty,  as  the  law  regards  such  conduct  "a 
fraud  upon  his  employer "  (Shannon  v.  Comstock,  supra  ;  Hunting- 
ton v.  Ogdensburg  &  L.  C.  K.  R.  Co.  33  How.  416).     If  intending  to 


POLK   v.   DALY.  419 

insist  on  a  continuing,  although  constructive,  performance,  and  a 
right  to  recover  as  for  full  compensation  under  the  contract,  he  could 
not  accept  the  employer's  dismissal  as  a  license  to  indulge  in  a  relaxa- 
tion of  its  requirements,  and  go  about  his  own  business.  The  mo- 
tion for  a  nonsuit,  made  substantially  on  this  ground  at  the  close  of 
plaintiff's  case,  was  renewed  at  the  end  of  the  trial,  in  a  request  to  the 
judge  to  charge  the  jury,  and  substantially  presented  both  the  previous 
questions. 

Thirdly.  The  plaintiff's  discharge  did  not,  as  a  matter  of  law,  en- 
title him,  on  the  expiration  of  his  term  of  service,  to  recover  the  full 
price  for  the  whole  period.  The  defenses  arising  from  his  departure 
for  Maryland,  and  his  continued  absence  at  the  South;  and  his  failure 
after  his  discharge  to  attend  at  the  theater,  or  to  apply  for  employ- 
ment elsewhere  ;  or  to  maintain  any  continuous  offer  to  perform, 
were  set  up  by  the  answer  and  distinctly  proved.  The  absence  of 
any  such  tender  of  services  or  readiness  to  perform  for  eight  weeks 
after  he  was  discharged,  disentitled  him  from  such  a  recovery  for 
services  rendered  during  that  period  at  the  contract  rates,  as  has  been 
awarded.  There  has  been  much  question  whether  the  employee  un- 
justly discharged,  but  tendering  performance,  may  maintain  his 
action  on  the  contract  for  accruing  wages,  or  is  confined  to  his  single 
remedy  for  damages  for  the  unjust  dismissal.  This  subject  has  been 
most  ably  and  elaborately  examined  by  C.  J.  Daly,  in  Moody  v.  Lev- 
erieh  {ante,  p.  407),  decided  at  the  present  term  (in  which  I  con- 
curred), sustaining  the  latter  view  of  the  law,  and  must  be  regarded 
as  settling  the  question,  so  far  as  this  court  is  concerned.  While 
there  may  be  authorities  asserting  more  or  less  broadly  the  right  of 
the  employee  illegally  discharged,  on  maintaining  tender  of  his  serv- 
ices, to  recover  compensation  from  time  to  time  as  wages  would  be- 
come due  under  the  provisions  of  the  contract  (see  cases  reviewed  in 
Moody  v.  Leverich),  none  of  them  assume  to  afford  such  right  of  re- 
covery to  one  who  abandons  the  sphere  of  his  employment  and  adopts 
other  pursuits  for  his  own  profit  or  pleasure. 

Fourthly.  Notwithstanding  the  want  of  a  formal  exception  to  the 
refusal  of  the  judge  to  charge  as  requested,  "  that  plaintiff,  by  leav- 
ing the  city,  rendered  it  impossible  for  the  defendant  to  employ  him," 
the  facts  of  the  case  clearly  show  that  plaintiff,  by  his  departure  and 
abiding  at  the  South  for  the  period  of  time  shown,  relinquished  his 
employment,  and  disentitled  himself  from  any  recovery  after  he  left; 
and  as  the  point  had  been  previously  taken  on  the  motion  to  dismiss 
the  complaint,  the  court  on  this  appeal  is  required  "  to  give  judgment 
according  to  the  justice  of  the  case,  without  regard  to  technical  errors 


420  PRINCIPAL   AND   SURETY. 

and  defects  which  do  not  affect  the  merits"  (Code,  §  366).  Those 
merits,  on  the  pleadings  and  proofs  in  the  case,  in  my  opinion,  de- 
barred the  plaintiff  from  the  recovery  of  any  definite  sum  beyond  the 
$18  58  tendered  or  offered. 

For  these  reasons  the  judgment  should  be  reversed,  subject  to 
plaintiff's  acceptance  of  that  amount. 

Judgment  reversed. 


PRINCIPAL  AND  SURETY. 

Principal  and  Surety  ;  Absolute  Covenant  to  Pay. 


COURT   OF    EXCHEQUER. 

[1842]    Loosemoke  v.  Radford  (9  Mees.  &  Wels.  657). 

The  plaintiff  and  defendant  being  joint  makers  of  a  promissory  note,  the  defendant  as 
principal  and  the  plaintiff  as  his  surety,  the  defendant  covenanted  with  the  plaintiff 
to  pay  the  amount  to  the  payee  of  the  note  on  a  given  day,  but  made  default.  Held, 
in  an  action  on  this  covenant,  that  the  plaintiff  was  entitled,  though  he  had  not  paid 
the  note,  to  recover  the  full  amount  of  it  by  way  of  damages. 

Covenant. — The  declaration  stated,  that  whereas  the  defendant, 
before  and  at  the  time  of  the  making  of  the  indenture  hereinafter 
mentioned,  was  indebted  to  H.  D.  and  G.  B.  in  the  sum  of  400?., 
secured  to  them  by  a  promissory  note  made  by  the  defendant,  and  by 
the  plaintiff  as  the  defendant's  surety,  and  in  951.  5s.  9d.  for  interest 
thereon  ;  and  thereupon,  by  a  certain  indorsement  bearing  date,  &c, 
made  between  the  defendant  of  the  one  part,  and  the  plaintiff  of  the 
other  part,  the  defendant  covenanted  with  the  plaintiff,  that  he  the 
defendant  would  well  and  truly  pay  to  the  said  H.  D.  and  G.  B.  the 
sum  of  4c00L,  with  interest  as  aforesaid,  on  the  13th  day  of  August 
then  next.  Breach,  that  the  defendant  did  not  pay  to  the  said  H.  D. 
and  G.  B.,  or  either  of  them,  the  said  sum  of  4:001.  and  interest,  or 
any  part  thereof,  on  the  said  13th  day  of  August,  or  at  any  other 
time. 

The  defendant  pleaded  payment  into  court  of  Is.  and  no  damages 
ultra,  which  latter  averment  was  traversed  by  the  replication. 

At  the  trial  before  Lord  Abinger,  C.  B.,  at  the  Middlesex  sittings 
after  Hilary  term,  it  appeared  that  the  defendant  being  in  embarrassed 
circumstances,  the  payees  had  informed  the  plaintiff  that  they  should 


LAMAR   INSURANCE   CO.   v.   McGL ASHEN.  421 

hold  him  liable  upon  the  note,  whereupon  he  obtained  from  the  de- 
fendant the  deed  mentioned  in  the  declaration.  The  note  was  still 
unpaid  at  the  time  of  the  trial :  and  it  was  objected  that  the  plaintiff 
was  therefore  entitled  to  recover  nominal  damages  only.  The  Lord 
Chief  Baron  overruled  the  objection,  and  under  his  direction  the 
plaintiff  had  a  verdict,  damages  500?. 

A  motion  for  a  new  trial  on  the  ground  of  misdirection  having 
been  made,  the  following  opinions  were  pronounced. 

Parke,  B. — I  think  there  ought  to  be  no  rule.  This  is  an  abso- 
lute and  positive  covenant  by  the  defendant  to  pay  a  sum  of  money 
on  a  day  certain.  The  money  was  not  paid  on  that  day,  nor  has  it 
been  paid  since.  Under  these  circumstances,  I  think  the  jury  were 
warranted  in  giving  the  plaintiff  the  full  amount  of  the  money  due 
upon  the  covenant.  If  any  money  had  been  paid  in  respect  of  the 
note  since  the  day  fixed  for  the  payment,  that  would  relieve  the 
plaintiff  pro  tanto  from  his  responsibility.  The  defendant  may  per- 
haps have  an  equity  that  the  money  he  may  pay  to  the  plaintiff  shall 
be  applied  in  discharge  of  his  debt :  but  at  law  the  plaintiff'  is  entitled 
to  be  placed  in  the  same  situation  under  this  agreement,  as  if  he  had 
paid  the  money  to  the  payees  of  the  bill. 

Alderson,  B. — The  question  is,  to  what  extent  has  the  plaintiff 
been  injured  by  the  defendant's  default  %  Certainly  to  the  amount  of 
the  money  that  the  defendant  ought  to  have  paid  according  to  his 
covenant.  The  case  resembles  that  of  an  action  of  trover  for  title 
deeds,  where  the  jury  may  give  the  full  value  of  the  estate  to  which 
they  belong  by  way  of  damages,  although  they  are  generally  reduced 
to  40s.  on  the  deeds  being  given  up. 

Gurnet,  B.,  and  Polfe,  B.,  concurred. 

Rule  refused. 


Marine  Insurance  ;  Partial  Loss  ;  Items  of  Loss. 


SUPREME    COURT,    ILLINOIS. 

[1870.]    Lamar  Insurance  Co.  v.  McGlashen  (54  111.  513). 

Where,  by  the  terms  of  a  contract  of  insurance  upon  a  cargo  of  corn  shipped  from  Chi- 
cago to  Montreal,  the  loss,  if  any,  was  payable  to  the  Bank  of  Montreal,  in  funds 
current  in  the  city  of  New  York,  it  was  held,  that  in  estimating  the  liability  of  the 
insurers,  a  loss  occurring,  the  premium  upon  gold  should  not  be  allowed  in  favor  of 
the  assured. 


422  PRINCIPAL  AND   SURETY. 

Under  a  policy  of  marine  insurance,  which  fixes  the  value  of  the  goods  at  the  sum  in- 
sured, in  case  of  a  partial  loss,  as  where  the  property  insured  was  grain,  a  portion 
of  which  reached  the  port  of  destination  in  a  damaged  condition,  the  actual  loss 
sustained  by  the  assured,  as  shown  by  the  difference  in  the  market  price  of  sound 
grain,  and  the  market  price  of  the  damaged  grain,  is  not  the  true  measure  of  the 
liability  of  the  insurer. 

In  such  case,  it  is  proper  to  inquire  as  to  the  difference  between  the  market  value,  at  the 
port  of  delivery,  of  grain  in  a  sound  condition,  and  the  grain  which  has  received 
damage  against  which  it  was  insured,  not,  however,  with  the  view  to  ascertain  the 
direct  amount  of  loss  incurred  by  the  assured,  but  to  find  the  proportionate  loss, 
that  is,  whether  the  difference  between  the  sound  and  damaged  grain  was  one-half, 
one-fourth,  or  one-tenth.  &c.  When  this  proportion  of  the  loss  is  thus  ascertained, 
the  extent  of  the  liability  of  the  insurer  is  also  ascertained,  as  he  pays  the  same 
proportional  part. 

The  standard  of  the  liability  of  the  insurer  in  such  case,  however,  the  value  of  the  goods 
insured  being  fixed  in  the  policy,  is  the  value  so  fixed,  and  not  the  value  in  the 
market,  so  that,  when  the  proportion  of  loss  is  ascertained  by  the  difference  between 
the  sound  and  damaged  sales,  that  gives  the  aliquot  part  of  the  original  value  which 
may  be  considered  as  destroyed  by  the  perils  insured  against ;  and  by  applying  this 
liquidated  proportion  of  the  loss  to  the  standard  of  value  as  fixed  in  the  policy,  it 
gives  the  proportion  of  loss,  whatever  it  may  be,  in  terms  of  money.  That  gives 
the  precise  amount  for  which  the  insurer  is  liable. 

The  charges  and  expenses  incurred  in  handling  and  disposing  of  the  goods,  in  case  of  a 
partial  loss,  in  order  to  be  considered  a  part  of  the  loss,  must  be  reasonable  and 
proper,  for  the  purpose  only  of  ascertaining  the  amount  of  the  loss. 

So  items  for  surveys,  inspection  and  sale  at  auction,  may,  in  such  case,  be  properly 
chargeable  as  a  part  of  the  loss,  those  being  the  appropriate  means  by  which  to 
ascertain  the  extent  of  the  loss. 

But  storage  of  the  goods  not  being  necessary  for  such  purpose,  charges  on  that  account 
would  not  be  regarded  as  a  part  of  the  loss  for  which  the  insurer  would  be  liable. 

Nor  would  the  amount  paid  by  the  consignee  for  insurance  of  the  goods  while  thus  in 
store  at  the  place  of  delivery,  be  considered  a  part  of  the  loss  occasioned  by  sea 
damage. 

Appeal  from  the  Superior  Court  of  Chicago ;  the  Hon.  William 
A.  Porter,  Judge,  presiding. 

The  opinion  of  the  court  contains  a  statement  of  the  case. 

Messrs.  Scammon,  McCagg  <&  Fuller,  and  Mr.  Laiorence  Proud- 
foot,  for  the  appellants,  cited  2  Parsons  on  Marine  Ins.  399-402  ;  3 
Kent,  430-432  ;  2  Arnould  on  Ins.  sec.  3,  90S  ;  Stevens  &  Benneck 
on  Averages,  292-294,  as  laying  down  the  correct  rule  for  com- 
puting damages  in  case  of  partial  loss  under  a  policy  of  marine 
insurance. 

The  rule  is  founded  on  three  celebrated  decisions  :  Lewis  v. 
Pucker  (2  Burrows,  1167);  Usher  v.  Noble  (12  East,  639),  and 
Johnson  v.  Shedden  (2  East,  581).  These  cases  establish  the  rule 
for  adjusting  partial  losses  on  goods  subjected  to  marine  risks, 
which  has  been  in  force  ever  since  the  times  of  those  decisions. 
That  rule  holds,- that  it  is  the  proceeds  of  the  gross  sales  of  the 


LAMAR   INSURANCE   CO.   v.   McGLASHEX.  423 

sound  and  damaged  goods,  which  are  to  be  compared  in  estimating 
the  damages  under  a  partial  loss.  This  would,  of  course,  exclude 
the  expenses  of  storing,  insuring  and  handling  the  property  insured. 
It  also  allows  the  assured  to  recover  only  a  sum,  less  than  the  total 
damage  to  the  goods,  which  is  proportioned  to  the  amount  insured 
by  the  underwriters  and  the  shippers. 

Mr.  Justice  McAllister  delivered  the  opinion  of  the  court  : 
This  was  an  action  of  assumpsit,  brought  by  appellees  against 
appellants,  upon  a  contract  of  marine  insurance,  bearing  date  the 
first  of  May,  A.  D.  1866,  whereby  appellants  insured,  under  policy 
!No.  155,  for  account  of  appellees,  $15,000,  on  20,981.18  bushels  of 
corn,  valued  at  the  sum  insured,  on  board  of  the  bark  Mary  Merritt, 
from  Chicago  to  Montreal.  Loss,  if  any,  payable  to  the  Bank  of 
Montreal,  in  funds  current  in  the  city  of  JS^ew  York,  with  permis- 
sion to  transship  at  Kingston  on  standard  barges  or  vessels.  Premi- 
um of  insurance,  $285  60,  acknowledged  to  have  been  received  by 
the  agents  of  appellants.  The  policy  referred  to  provides  that  the 
beginning  of  the  adventure  shall  be  from  and  after  the  lading 
thereof,  and  continue  until  landed  at  the  port  of  destination ;  but 
not  to  exceed  forty-eight  hours  after  the  arrival  and  anchorage  or 
mooring  of  said  vessel  at  the  port  of  destination  aforesaid. 

The  bark  left  the  port  of  Chicago  on  the  thirtieth  of  April,  1866  ; 
but,  in  consequence  of  a  severe  storm,  she  was  obliged  to  return 
about  the  third  of  May.  After  a  survey,  and  with  the  consent  of 
appellants'  agent,  she  proceeded  again.  In  the  course  of  the  voyage 
the  water  got  in,  and  when  she  arrived  at  Kingston,  about  the  twen- 
tieth, it  was  found  that  four  hundred  bushels  had  become  so  wet 
and  damaged  as  to  require  an  immediate  sale.  The  residue  was  re- 
ceipted in  ajDparent  good  order,  transshipped  upon  a  barge  and  taken 
to  Montreal,  arriving  there  on  the  twenty-eighth  or  twenty-ninth  of 
May.  On  the  thirtieth,  it  was  inspected  by  an  authorized  inspector, 
and  declared  rejected.  It  is  an  undisputed  fact  that  it  was  then  in 
a  heated  or  heating  condition.  It  was  under  the  care  of  the  con- 
signees, but  permitted  to  lie  in  the  vessel  some  three  or  four  days, 
and  then  put  into  store  for  the  purpose  of  being  handled  and 
dried.  Consignees  obtained  an  insurance  upon  it,  while  in  store, 
paying  eighteen  dollars  as  premium.  A  few  days  before  the 
fourth  of  July,  1866,  one  thousand  bushels  of  it  were  sold  at 
private  sale,  at  fifty-six  cents,  and  on  the  fourth,  the  residue 
was  sold  at  auction,  different  lots  bringing  different  prices. 
These  being  the  main  facts,  it  is  now  necessary  to  determine 
whether  the  proper  measure  of  appellants'  liability  was  regarded 


424  PRINCIPAL  AND   SURETY. 

upon  the  trial.  Appellees'  statement  of  account  between  them  and 
appellants  sufficiently  shows  what  that  measure  was.  It  was  arrived 
at  in  this  manner  :  The  market  price  of  sound  corn  at  Montreal,  at 
the  date  of  arrival  of  cargo,  was  estimated  at  fifty-six  cents  per 
bushel.  Appellees  find  what  the  whole  cargo  would  have  amounted 
to  at  that  price.  They  then  deduct  from  that  amount  the  net  pro- 
ceeds of  all  the  corn  sold  at  the  times  and  in  the  manner  above 
stated  ;  but,  in  arriving  at  the  net  proceeds  of  the  latter,  they  deduct 
$1,106  96  as  the  charges  for  handling  it,  and  among  the  items  mak- 
ing up  that  amount  is  the  eighteen  dollars  paid  for  insurance  on  it 
while  in  store  (although  the  risk  of  appellants  did  not  extend  beyond 
forty-eight  hours  after  its  arrival  at  Montreal),  and  $823  77  for 
storage  and  drying ;  and,  after  all  these  deductions,  the  balance 
claimed  to  be  due  appellees,  according  to  their  own  statement, 
was  $3,742  96.  The  jury,  having  no  other  data,  found  a  verdict 
for  $6,022  29,  and  the  court  below  refused  to  set  it  aside  and 
grant  a  new  trial.  We  have  been  unable,  after  the  most  careful  ex- 
amination of  the  testimony,  to  resort  to  any  proper  calculation  by 
which  the  amount  of  this  verdict  can  be  sustained,  and  no  theory 
has  been  suggested  by  which  it  can  be  sustained.  Appellees  prefixed 
to  the  amount  of  balance  due,  according  to  their  statement  given  in 
evidence,  the  word  "gold,"  and  it  has  been  suggested  that  the  jury 
must  have  allowed  the  premium  on  gold  in  1866.  If  so,  it  was 
wrong,  because,  by  the  terms  of  the  policy,  the  amount  insured  is 
payable  in  funds  current  in  the  city  of  New  York. 

It  is  apparent  that  an  incorrect  measure  of  appellants'  liability 
was  adopted  at  the  trial.  The  basis  of  the  verdict  was  the  difference 
between  the  market  price  of  the  sound  and  the  market  price  of  the 
damaged  corn,  including  all  the  particular  charges  above  mentioned. 
That  difference  may  give  the  amount  of  appellees'  loss,  but  it  is  not 
the  amount  appellants  are  liable  to  pay,  because,  first,  it  would  make 
the  market  price  of  the  corn  the  basis  of  the  appellants'  liability, 
when  the  true  basis  is  the  valuation  in  the  policy ;  and  it  would  in- 
volve the  insurer  in  the  rise  and  fall  of  the  markets,  with  which  he 
has  no  concern.  The  extent  of  loss  the  appellees  sustained  on  this 
corn  by  sea  damage  is  one  thing,  and  the  amount  which  the  insur- 
ance company  is  bound  to  pay  is  quite  another ;  accordingly  when 
the  corn  arrived  at  the  port  of  destination  sea-damaged,  two  points 
were  to  be  ascertained :  first,  the  extent  of  depreciation  in  value 
which  it  had  suffered  ;  second,  the  amount  which  the  insurer  ought 
to  pay  in  respect  thereof.  The  first  point  could  be  ascertained  by 
simply  comparing  the  price  for  which  the  corn  would  have  sold  in 


LAMAR   INSURANCE   CO.   v.   McGLASHEN.  425 

the  market,  liad  it  arrived  there  sound,  with  the  price  for  which  it 
might  have  sold,  arriving  there  damaged.  But  the  object  of  com- 
paring the  proceeds  of  the  sound  and  damaged  sales,  for  the  pur- 
pose of  indemnity  under  the  policy,  is  not  to  ascertain  the  direct 
amount  of  the  appellees'  loss,  but  its  relative  amount — the  propor- 
tion which  it  bears  to  the  price  at  which  the  corn  would  have  sold 
if  sound ;  the  question  being  not  whether  the  depreciation  amounts 
to  any  fixed  sum,  but  whether  it  amounts  to  one-half,  one-third,  or 
two-thirds,  or  any  other  proportion  of  the  sum  for  which  the  corn 
would  have  sold  if  sound ;  whether,  in  short,  the  property  was  one- 
half,  one-third,  or  two-thirds  the  worse  for  the  sea  damage.  When 
this  is  ascertained,  the  liability  of  the  insurance  company  is  ascer- 
tained also,  for  they  pay  the  same  proportional  part. 

The  corn  in  question  was  valued  in  the  policy.  It  was  not 
claimed  that  there  was  more  than  a  partial  loss.  The  mode  of  meas- 
uring the  liability  of  the  insurer  in  such  case  is  laid  down  in  the 
leading  case  of  Lewis  v.  Rucker  (2  Burr.  1167),  by  Lord  Mansfield. 
"  Where,"  said  he,  "  an  entire  individual,  as  one  hogshead,  happens 
to  be  spoiled,  no  measure  can  be  taken  from  the  prime  cost  to  ascer- 
tain the  quantum  of  damage ;  but  if  you  can  fix  whether  it  be  a 
third,  a  fourth  or  a  fifth  worse,  the  damage  is  fixed  to  a  mathemat- 
ical certainty."  And  this,  he  says,  "is  to  be  done  by  the  price  at 
the  port  of  delivery." 

In  Usher  v.  Noble  (12  East,  64T),  Lord  Ellenboeough  stated  the 
rule  thus :  "  The  difference  between  the  sound  and  damaged  sales 
affords  the  proportion  of  loss  in  any  given  case,  i.  e.,  it  gives  the 
aliquot  part  of  the  original  value,  which  may  be  considered  as  de- 
stroyed by  the  perils  insured  against ;  when  this  is  ascertained,  it 
only  remains  to  apply  this  liquidated  proportion  of  the  loss  to  the 
standard  by  which  the  value,  as  between  the  assured  and  the  under- 
writer, is  calculated  (i.  e.,  the  prime  cost  or  value  in  the  policy),  and 
you  have  the  one-half,  the  one-fourth,  or  the  one-tenth  of  the  loss, 
in  terms  of  money." 

The  rule  by  which  to  calculate  a  partial  loss,  in  such  a  case  as 
this  at  bar,  is  the  difference  between  the  respective  gross  proceeds 
of  the  same  article  when  sound  and  when  damaged,  and  not  the  net 
proceeds.  Johnson  v.  Shedden  (2  East,  581),  which  case  decides 
that  the  underwriter  is  not  to  bear  any  loss  from  fluctuation  of 
markets,  or  port  duties,  or  charges  after  the  arrival  of  the  goods  at 
their  port  of  destination.  It  is  said  (in  2  Arnould  on  Ins.  969 1,  that, 
"  by  the  gross  produce  of  the  sale  is  meant  the  market  price  at 
which  the  merchant,  after  paying  freight,  duty  and  landing  charges,. 


426  PRINCIPAL   AND   SURETY. 

can  sell  the  goods  to  the  consumer  or  purchaser  at  the  port  of  ar- 
rival," and  that,  "  by  the  term  net  proceeds  is  meant  the  gross  pro- 
ceeds, deducting  freight,  duty  and  landing  charges  "  (lb.  970). 

It  is  claimed  by  appellants'  counsel,  that  the  charges  for  handling 
this  carffo  after  its  arrival  were  such  as  could  not  be  included  in  the 
amount  of  indemnity  which  appellants  are  liable  to  pay.  There  are 
charges  of  a  certain  class  which  are  to  be  borne  by  the  underwriter, 
though  not  a  part  nor  a  direct  consequence  of  the  sea  damage.  Sales 
by  auction  are  resorted  to  mainly  with  the  view  of  comparing  the 
sound  and  damaged  values,  so  as  to  ascertain  the  amount  of  indem- 
nity which  the  insurer  has  to  pay.  There  may  be  other  modes. 
The  question  in  all  such  cases  is,  was  that  expense  reasonable  and 
proper  for  the  purpose  of  ascertaining  the  amount  of  the  loss  ?  If 
it  be,  then  it  is  a  part  of  the  loss.  In  Muir  v.  United  Ins.  Co.  (1 
Caine's  R.  49),  the  court  said  :  "  Had  the  sale  at  auction  been  to 
ascertain  the  injury  the  cargo  had  received,  and  limited  to  such 
parts  as  were  damaged,  it  would  have  been  a  reasonable  charge,  but 
that  appears  not  to  have  been  the  object  or  effect  of  the  auction  ; " 
and  it  was  there  held,  that  the  charges  attending  the  auction  could 
not,  for  that  reason,  be  considered  as  a  loss  to  borne  by  the  under- 
writers (2  Parsons  on  Mar.  Ins.  399 ;  2  Arnould,  973).  The  prin- 
ciple being,  that  the  charges,  in  order  to  be  considered  a  part  of  the 
loss,  must  be  reasonable  and  proper  for  the  purpose  of  ascertaining 
the  amount  of  the  loss,  the  inquiry  as  to  a  particular  charge  being 
of  that  character,  might  involve  questions  of  fact,  but  when  the 
facts  are  undisputed,  it  is  the  duty  of  the  court  to  determine  whether 
such  extra  charges  were  necessary  to  ascertain  the  partial  loss,  and, 
therefore,  formed  a  part  of  it. 

That  the  amount  paid  for  insurance,  while  retaining  this  corn  in 
store,  was  not  reasonable  or  proper,  is  quite  clear,  and,  under  the 
rules  laid  down  as  to  the  mode  of  ascertaining  the  quantum  of  dam- 
age, there  can  be  no  reason  shown  to  support  the  charge  for  storage. 
The  quantum  of  injury  should  be  ascertained  immediately,  or  within 
a  reasonable  time.  The  storage  was  not  for  that  purpose,  but  for 
the  purpose  of  securing  a  rising  market.  The  condition  of  the 
grain  for  all  the  practical  purposes  of  a  public  sale  could  have  been 
ascertained  by  inspection  or  survey. 

If  it  was  stored  for  the  purpose  of  a  more  advantageous  market, 
or  any  purpose  other  than  that  of  a  reasonable  and  proper  mode  of 
ascertaining  the  extent  of  the  injury,  the  appellants  would  not  be 
liable  to  that  expense  as  a  part  of  the  loss.  For  the  legitimate  ob- 
ject of  determining  the  extent  of  injury,  it  was  immaterial  whether 


TAYLOE   v.    SAXDIFORD.  427 

the  market,  at  the  time  of  arrival,  was  rising  or  falling.  Lord 
Mansfield,  in  Lewis  v.  Rucker  {supra),  said  :  "  Whether  the  price 
there  (the  port  of  delivery)  be  high  or  low,  in  either  case  it  equally 
shows  whether  the  damaged  goods  are  a  third,  a  fourth  or  a  fifth 
worse  than  if  they  had  come  sound." 

The  items  for  surveys,  inspection  and  sale  at  auction,  may,  under 
the  circumstances  above  indicated,  be  properly  chargeable  as  a  part 
of  the  loss. 

The  court  below  having,  by  instructions  to  the  jury,  sanctioned 
a  measure  of  liability  on  the  part  of  appellants,  different  from  that 
above  enunciated,  the  judgment  must  be  reversed  and  the  cause 
remanded. 

Judgment  reversed. 


LIQUIDATED   DAMAGES. 

Liquidated  Damages  ;  Stipulation  to  Pat  Money  in  gross  foe 
Breach  of  Contract  ;  Application  of  Payments. 


supreme  court  of  the  united  states. 
[1822.]  Tayloe  v.  Sandifokd  (7  Wheat,  13). 

In  general,  a  sum  of  money  in  gross,  to  be  paid  for  the  non-performance  of  an  agreement, 
is  considered  as  a  penalty,  and  not  as  liquidated  damages. 

A  fortiori,  when  it  is  expressly  reserved  as  a  penalty. 

Thus,  where  in  a  building  contract  the  following  covenant  was  contained:  "The  said 
houses  to  be  completely  finished  on  or  before  the  24th  of  December  next,  under  a 
penalty  of  $1,000  in  case  of  failure  ;"  it  was  Held,  that  this  was  not  intended  as 
liquidated  damages  for  the  breach  of  that  single  covenant  only,  but  applied  to  all 
the  covenants  made  by  the  same  party  in  that  agreement ;  that  it  was  in  the  nature 
of  a  penalty,  and  could  not  be  set  off  in  an  action  brought  by  the  party  to  recover 
the  price  of  the  work. 

An  agreement  to  perform  certain  work  within  a  limited  time,  under  a  certain  penalty,  is 
not  to  be  construed  as  liquidating  the  damages  which  the  part}-  is  to  pay  for  the 
breach  of  his  covenant. 

The  case  of  Fletcher  v.  D}-cke  (2  Term  Rep.  32),  commented  on,  and  distinguished  from 
the  present. 

A  person  owing  money  under  distinct  contracts,  has  a  right  to  apply  his  payments  to 
whichever  debt  he  may  choose,  and  this  power  may  be  exercised  without  any  ex- 
press direction  given  at  the  time. 

A  direction  may  be  evidenced  by  circumstances,  as  well  as  by  words  ;  and  a  positive  re- 
fusal to  pay  one  debt,  and  an  acknowledgment  of  another,  with  a  delivery  of  the 
sum  due  upon  it,  would  be  such  a  circumstance. 


428  LIQUIDATED   DAMAGES. 

Mr.  Chief  Justice  Marshall  delivered  the  opinion  of  the  court : 

This  is  a  writ  of  error  to  a  judgment  of  the  Circuit  Court  of  the 
county  of  Alexandria,  rendered  in  an  action  of  assumpsit  brought 
by  T.  &  S.  Sancliford  against  John  Tayloe.  It  appeared  on  the  trial 
of  the  cause,  that  on  the  13th  of  May,  1816,  the  parties  entered  into 
a  written  contract,  by  which  the  defendants  in  error  undertook  to 
build  for  the  plaintiff,  three  houses  on  the  Pennsylvania  avenue  in 
the  city  of  "Washington.  On  the  18th  day  of  the  same  month,  the 
parties  entered  into  a  contract,  under  seal,  for  the  building  of  three 
additional  houses  at  a  stipulated  price.  This  contract  contains  the 
following  covenant  :  "  The  said  houses  to  be  completely  finished  on 
or  before  the  21th  day  of  December  next,  under  a  penalty  of  one 
thousand  dollars  in  case  of  failure." 

The  parties  entered  into  a  third  verbal  contract  for  some  ad- 
ditional work,  to  be  measured  and  paid  for  according  to  measure- 
ment. 

These  three  houses  were  not  completed  by  the  day,  and  the 
plaintiff  in  error  claimed  the  sum  of  one  thousand  dollars  as  stipu- 
lated damages,  and  retained  it  out  of  the  money  due  to  the  defend- 
ants in  error.  This  suit  was  thereupon  brought ;  and,  on  the  trial 
of  the  cause,  the  defendant  in  the  Circuit  Court  claimed  to  set  off 
in  this  action  one  thousand  dollars,  as  in  the  nature  of  stipulated 
damages ;  but  the  court  overruled  this  claim,  and  decided  that  the 
said  sum  of  one  thousand  dollars  had  been  reserved  in  the  nature  of 
a  penalty,  and  could  not  be  set  off  in  this  action. 

The  defendant  then  moved  the  court  to  instruct  the  jury,  that 
"  upon  the  evidence  offered,  if  believed,  the  plaintiffs  were  not  enti- 
tled to  recover,  in  this  action,  the  said  sum  of  one  thousand  dollars, 
inasmuch  as  the  same,  if  due  at  all,  was  due  under  a  contract  under 
seal,  and  that  the  declarations  of  the  defendant,  and  the  understand- 
ing between  the  parties  as  to  the  reservation  of  the  said  one  thousand 
dollars,  given  in  evidence  as  aforesaid,  was  competent  and  sufficient 
evidence  of  the  defendants'  intention  to  apply  his  payment  to  the 
extinguishment,  in  the  first  instance,  of  such  parts  of  the  said 
moneys  as  were  due  by  simple  contract,  and  to  reserve  the  one 
thousand  dollars  out  of  the  money  due  under  the  said  original  con- 
tract." This  instruction  the  court  refused  to  give  ;  and  did  instruct 
the  jury  "  that  it  was  competent  to  the  plaintiffs  to  recover  the  said 
one  thousand  dollars  in  this  action,  unless  they  should  be  satisfied 
by  the  evidence,  that  the  defendant,  at  the  time  of  paying  the 
money,  had  expressly  directed  the  same,  or  a  sufficient  part  thereof, 
to  the  payment  of  the  one  thousand  five  hundred  dollars  due  on  the 
simple  contract." 


TAYLOE   v.    SANDIFORD.  429 

To  both  these  opinions  the  defendant  excepted ;  and  the  jury 
having  given  a  verdict  for  the  plaintiff  in  the  Circuit  Court,  this 
writ  of  error  was  brought  to  the  judgment  rendered  thereon. 

It  is  contended,  by  the  plaintiff  in  error,  that  the  Circuit  Court 
erred. 

1st.  In  overruling  the  claim  to  offset  the  one  thousand  dollars 
mentioned  in  the  agreement. 

2d.  In  declaring  that  the  plaintiff  in  that  court  might  so  apply 
the  payments  made,  as  to  discharge  the  contract  under  seal,  and  leave 
the  sum  retained  by  the  defendant  in  that  court,  to  be  demanded 
under  the  simple  contract. 

1.  Is  the  sum  of  one  thousand  dollars,  mentioned  in  the  agree- 
ment  of  the  13th  of  May,  to  be  considered  as  a  penalty  or  as  stipu- 
lated damages  ? 

The  words  of  the  reservation  are,  "  The  said  house  to  be  com- 
pletely finished  on  or  before  the  21th  day  of  December  next,  under 
the  penalty  of  one  thousand  dollars  in  case  of  failure." 

In  general,  a  sum  of  money  in  gross,  to  be  paid  for  the  non-per- 
formance of  an  agreement,  is  considered  as  a  penalty,  the  legal  oper- 
ation of  which  is  to  cover  the  damages  which  the  party,  in  whose 
favor  the  stipulation  is  made,  may  have  sustained  from  the  breach 
of  contract  by  the  opposite  party.  It  will  not  of  course  be  consid- 
ered as  liquidated  damages ;  and  it  will  be  incumbent  on  the  party 
who  claims  them  as  such,  to  show  that  they  were  so  considered  by 
the  contracting  parties.  Much  stronger  is  the  inference  in  favor  of 
its  being  a  penalty,  when  it  is  expressly  reserved  as  one.  The  par- 
ties themselves  denominate  it  a  penalty  ;  and  it  would  require  very 
strong  evidence  to  authorize  the  court  to  say  that  their  own  words 
do  not  express  their  own  intention.  These  writings  appear  to  have 
been  drawn  on  great  deliberation  ;  and  no  slight  conjecture  would 
justify  the  court  in  saying  that  the  parties  were  mistaken  in  the 
import  of  the  terms  they  have  employed. 

The  counsel  for  the  plaintiff  in  error  supposes  that  the  contract 
furnishes  clear  evidence  that  the  parties  intended  this  sum  as  liqui- 
dated damages.  The  circumstance  that  it  is  annexed  to  the  single 
covenant,  stipulating  the  time  when  the  work  shall  be  completed,  is 
considered  as  showing  that  it  was  intended  to  fix  the  damages  for 
the  breach  of  that  covenant. 

Without  deciding  on  the  weight  to  which  this  argument  would 
be  entitled,  if  supported  by  the  fact,  the  court  cannot  admit  that  it 
is  so  supported.  The  engagement,  that  the  said  houses  shall  be 
completely  finished  on  or  before  the  24th  day  of  December  next,  is 


430  LIQUIDATED   DAMAGES. 

as  much  an  engagement  for  the  manner  as  for  the  time  of  finishing 
the  work,  and  covers,  we  think,  all  the  covenants  made  by  the  de- 
fendants in  error  in  that  agreement.  The  case,  therefore,  presents 
the  single  question,  whether  an  agreement  to  perform  certain  work 
by  a  limited  time,  under  a  certain  penalty,  is  to  be  construed  as 
liquidating  the  damages  which  the  party  is  to  pay  for  a  breach  of 
his  covenant.  This  question  seems  to  have  been  decided  in  the  case 
of  Smith  v.  Dickenson,  reported  in  3  Bos.  &  Pull.  630. 

The  plaintiff  in  error  relies  on  the  case  of  Fletcher  v.  Dycke, 
reported  in  2  T.  R.  32,  in  which  an  agreement  was  entered  into  to 
do  certain  work  within  a  certain  time,  and  if  the  work  should  not 
be  done  within  the  time  specified,  "  to  forfeit  and  pay  the  sum  of 
101.  for  every  week,"  until  it  should  be  completed. 

But  the  words  "  to  forfeit  and  pay,"  are  not  so  strongly  indica- 
tive of  a  stipulation  in  the  nature  of  a  penalty,  as  the  word  "  pen- 
alty" itself;  and  the  agreement  to  pay  a  specified  sum  weekly 
during  the  failure  of  the  party  to  perform  the  work,  partakes  much 
more  of  the  character  of  liquidated  damages  than  the  reservation  of 
a  sum  in  gross. 

The  court  is  well  satisfied  that  this  stipulation  is  in  the  nature  of 
a  penalty,  and,  consequently,  that  there  was  no  error  in  rejecting  it 
as  a  set-off  in  this  case.* 

The  second  objection  goes  entirely  to  the  form  of  the  action. 
The  declaration  is  in  assumpsit ;  and  the  plaintiff  contends  that  the 
money  claimed  was  due  on  a  sealed  instrument.  It  is  admitted  that 
all  the  money  for  the  whole  work  performed  by  the  defendants  in 
error,  was  paid,  except  the  sum  of  one  thousand  dollars,  which  was 
retained  by  the  plaintiff  in  error,  expressly  on  account  of  that  sum 
which  he  supposed  himself  entitled  to  under  the  contract  of  the  18th 
of  May,  on  account  of  the  failure  to  complete  the  buildings  by  the 
21th  of  December.     If  this  money  was  due  on  the  simple  contract, 


*  (Note  from  the  report  in  7  Wheaton). — This  subject  is  discussed,  with  his  usual  abil- 
ity and  acuteness,  by  Mr.  Evans,  in  the  Appendix  to  his  Translation  of  Pothier  on  Obliga- 
tions (vol.  2,  p.  93-98).  He  thinks  that  the  penalty  ought,  in  general,  to  be  regarded  as 
stated  damages  ;  and  his  observations  are  calculated  to  excite  doubts  as  to  the  correctness 
of  some  of  the  decisions  on  this  subject.  In  addition  to  the  cases  collected  by  him,  and 
those  cited  in  the  argument  of  the  above  case,  in  the  text  (Tayloe  v.  Sandiford)  the  follow- 
ing cases  may  be  referred  to:  Ponsonby  v.  Adams,  6  Bro.  Paid.  Cas.  418;  Harrisons. 
Wright,  13  East,  343 ;  Rolfe  v.  Peterson,  6  Bro.  Pari.  Cas.  470  ;  Sloman  v.  Walter,  1  Bro. 
Ch.  Rep.  418  ;  Hardy  v.  Martin,  Id.  419  ;  Love  v.  Peers,  4  Burr.  2229 ;  Cotterel  v.  Hook, 
Doug.  101 ;  Wilbeam  v.  Ashton,  1  Campb.  N.  P.  Rep.  78;  Barton  v.  Glover,  1  Holt's  N. 
P.  Rep.  43.  The  learned  reader  will  also  find  the  supposed  result  of  all  the  English  cases 
summed  up  by  Mr.  Holt,  in  a  note  to  the  last  mentioned  case.     1  Holt's  N.  P.  Rep.  45. 


TAYLOE   v.    SAND1FORD.  431 

then  this  action  was  clearly  sustainable  ;  if  it  was  due  under  the 
sealed  instrument,  then  it  could  be  recovered  only  by  an  action  on 
that  instrument.  Its  being  due  on  the  one  or  the  other  depends  on 
the  application  of  the  payments  made  by  the  plaintiff  to  the  defend- 
ants in  error.  The  court  instructed  the  jury,  that  it  was  competent 
to  the  plaintiff  to  recover  the  said  one  thousand  dollars  in  this  ac- 
tion, "unless  they  should  be  satisfied  by  the  evidence,  that  the  de- 
fendant, at  the  time  of  paying  the  money,  had  expressly  directed 
the  same,  or  a  sufficient  part  thereof,  should  be  applied  to  the  extin- 
guishment of  the  one  thousand  five  hundred  dollars  due  on  the 
simple  contract." 

This  instruction  of  the  court  is  given  in  terms,  the  correctness  of 
which  cannot  be  entirely  admitted.  It  would  exclude  an  appli- 
cation of  the  money  made  by  the  creditor  himself,  with  the  assent 
of  the  debtor  to  the  simple  contract  debt ;  for,  in  such  case,  it 
would  not  appear  that  the  debtor  had  "  expressly  directed "  the 
application. 

Thus,  among  the  accounts  exhibited  at  the  trial,  is  a  receipt  for 
the  whole  sum  due  for  extra  work  performed  under  a  verbal  con- 
tract. It  was  not  proved  that  the  application  of  this  money  to  the 
discharge  of  the  verbal  contract  was  "  expressly  directed."  Yet  no 
person  will  say  that  the  creditor  was  at  liberty  to  controvert  this 
application,  or  to  change  it. 

A  person  owing  money  under  distinct  contracts,  has  undoubtedly 
a  right  to  apply  his  payments  to  whichever  debt  he  may  choose ; 
and,  although  prudence  might  suggest  an  express  direction  of  the 
application  of  his  payments  at  the  time  of  their  being  made,  yet 
there  may  be  cases  in  which  this  power  would  be  completely  exer- 
cised without  any  express  direction  given  at  the  time.  A  direction 
may  be  evidenced  by  circumstances  as  well  as  by  words.  A  pay- 
ment may  be  attended  by  circumstances  which  demonstrate  its  ap- 
plication as  completely  as  words  could  demonstrate  it.  A  positive 
refusal  to  pay  one  debt,  and  an  acknowledgement  of  another,  with  a 
delivery  of  the  sum  due  upon  it,  would,  we  think,  be  such  a  circum- 
stance. The  inquiry  then,  in  this  case,  will  be,  whether  the  pay- 
ments made  by  the  plaintiff  to  the  defendants  in  error,  were  accom- 
panied with  circumstances  which  amount  to  an  exercise  of  his  power 
to  apply  them. 

A  circumstance  of  no  light  import  was  given  in  evidence  by  the 
creditor  himself.  It  was  that,  at  the  time  of  discharging  the  account 
for  the  extra  work,  the  debtor  confessed  "  that  he  had  retained  in 
his  hands  one  thousand  dollars,  as  the  forfeiture  under  the  original 


432  LIQUIDATED   DAMAGES. 

contract  for  not  finishing  the  houses  in  the  time  stipulated  by  con- 
tract, and  that  he  would  hold  it,  unless  compelled  by  law  to  pay  it." 
This  one  thousand  dollars  was  the  penalty  stipulated  in  the  agree- 
ment under  seal ;  and  when  all  the  residue  of  the  money  was  paid, 
the  inference  is  very  strong  that  this  sum  was  reserved  out  of  the 
money  stipulated  by  the  same  agreement,  and  that  the  payments 
were  made  in  discharge  of  the  sums  acknowledged  to  be  due  for 
other  work. 

The  final  payment  was  made  by  Tayloe  through  the  hands  of  a 
third  person.  His  original  purpose  seems  to  have  been  to  insist  on 
a  receipt  in  full  before  he  would  pay  the  sum  which  remained  due, 
independent  of  the  sum  in  contest.  But  on  a  representation  of  the 
peculiar  pressure  under  which  the  Sandifords  labored,  they  having  a 
note  in  bank,  which  had  become  due,  he  agreed  to  pay  the  whole 
money  due,  under  all  the  contracts,  except  the  sum  of  one  thousand 
dollars,  which  he  claimed  a  right  to  retain,  under  the  stipulation  of 
the  sealed  instrument.  There  existed  no  objection  to  the  payment 
of  the  money  due  under  the  simple  contract.  The  whole  objection 
was  to  the  payment  of  that  under  the  sealed  instrument,  out  of  which 
he  claimed  a  right  to  deduct  one  thousand  dollars,  on  account  of  a 
failure  in  the  performance  of  that  contract.  Under  these  circum- 
stances, we  think  that  the  money  retained  must  be  considered  as  re- 
served out  of  the  sum  due  on  that  contract,  and  that  the  simple  con- 
tract was  discharged. 

The  court  erred  then  in  this  direction  to  the  jury,  and  the  judg- 
ment must  be  reversed  and  the  cause  remanded  for  a  new  trial. 


Liquidated    Damages  ;    Stipulation    of   various    Degrees   of    Im- 
portance. 


THE    COURT   OF    COMMON    PLEAS. 

[1829.]  Kemble  v.  Farren  (6  Bingh.  [141]  71). 

Liquidated  damages  cannot  be  reserved  on  an  agreement  containing  various  stipulations, 
of  various  degrees  of  importance,  unless  the  agreement  specify  the  particular  stipu- 
lation or  stipulations  to  which  the  liquidated  damages  are  to  be  confined. 

Assumpsit  by  the  manager  of  Covent  Garden  Theatre  against  an 
actor,  to  recover  liquidated  damages  for  the  violation  of  an  engage- 
ment to  perform  at  Covent  Garden  for  four  seasons. 


KEMBLE   v.   FARREX.  433 

By  an  agreement  between  the  plaintiff  and  defendant,  the  de- 
fendant had  engaged  himself  to  act  as  a  principal  comedian  at 
Covent  Garden  Theatre  for  four  seasons,  commencing  with  October, 
1828,  and  in  all  things  to  conform  to  the  regulations  of  the  theatre. 
The  plaintiff'  agreed  to  pay  the  defendant  31.  6s.  8d.  every  night  on 
which  the  theatre  should  be  open  for  theatrical  performances  during 
the  ensuing  four  seasons  ;  and  that  the  defendant  should  be  allowed 
one  benefit  night  during  each  season,  on  certain  terms  therein  speci- 
fied. And  the  agreement  contained  a  clause,  that  if  either  of  the 
parties  should  neglect  or  refuse  to  fulfill  the  said  agreement,  or  any 
part  thereof,  or  any  stipulation  therein  contained,  such  party  should 
pay  to  the  other  tlie  sum  of  1,000?.,  to  which  sum  it  was  thereby 
agreed  that  the  damages  sustained  by  any  such  omission,  neglect  or 
refusal  should  amount ;  and  which  sum  was  thereby  declared  by  the 
said  parties  to  be  liquidated  and  ascertained  damages,  and  not  a  pen- 
alty or  penal  sum,  or  in  the  nature  thereof. 

The  breach  alleged  was,  that  the  defendant  refused  to  act  during 
the  second  season ;  and  at  the  trial  the  jury  gave  a  verdict  for  the 
plaintiff  for  750?.  damages,  subject  to  a  motion  for  increasing  them 
to  1,000?.,  if  the  court  should  be  of  opinion  that,  upon  this  agree- 
ment, the  plaintiff  was  entitled  to  the  whole  sum  claimed  as  liqui- 
dated damages. 

A  rule  nisi  having  been  obtained,  and  the  motion  argued  accord- 
ingly, the  opinion  of  the  court  was  delivered  as  follows  by 

Tindal,  Ch.  J. — This  is  a  rule  which  calls  upon  the  defendant 
to  show  cause  why  the  verdict,  which  has  been  entered  for  the 
plaintiff  for  750?.,  should  not  be  increased  to  1,000?. 

The  action  was  brought  upon  an  agreement  made  between  the 
plaintiff  and  the  defendant,  whereby  the  defendant  agreed  to  act  as 
a  principal  comedian  at  the  Theatre  Royal,  Covent  Garden,  during 
the  four  then  next  seasons,  commencing  October,  1828,  and  also  to 
conform  in  all  things  to  the  usual  regulations  of  the  said  Theatre 
Royal,  Covent  Garden ;  and  the  plaintiff  agreed  to  pay  the  defend- 
ant 3?.  6s.  Sd.  every  night  on  which  the  theatre  should  be  open  for 
theatrical  performances,  during  the  next  four  seasons,  and  that  the 
defendant  should  be  allowed  one  benefit  night  during  each  season, 
on  certain  terms  therein  specified.  And  the  agreement  contained  a 
clause,  that  if  either  of  the  parties  should  neglect  or  refuse  to  fulfill 
the  said  agreement,  or  any  part  thereof,  or  any  stipulation  therein 
contained,  such  party  should  pay  to  the  other  the  sum  of  1,000?.,  to 
which  sum  it  was  thereby  agreed  that  the  damages  sustained  by  any 
such  omission,  neglect  or  refusal,  should  amount ;  and  which  sum 
28 


434:  LIQUIDATED   DAMAGES. 

was  thereby  declared  by  the  said  parties  to  be  liquidated  and  ascer- 
tained damages,  and  not  a  penalty  or  penal  sum,  or  in  the  nature 
thereof. 

The  breach  alleged  in  the  declaration  was,  that  the  defendant 
refused  to  act  during  the  second  season,  for  which  breach,  the  jury, 
upon  the  trial,  assessed  the  damages  at  760Z.  ;  which  damages  the 
plaintiff  contends  ought  by  the  terms  of  the  agreement  to  have 
been  assessed  at  1,000Z. 

It  is,  undoubtedly,  difficult  to  suppose  any  words  more  precise 
or  explicit  than  those  used  in  the  agreement ;  the  same  declaring  not 
only  affirmatively  that  the  sum  of  1,000£.  should  be  taken  as  liqui- 
dated damages,  but  negatively  also  that  it  should  not  be  considered 
as  a  penalty,  or  in  the  nature  thereof.  And  if  the  clause  had  been 
limited  to  breaches  which  were  of  an  uncertain  nature  and  amount, 
we  should  have  thought  it  would  have  had  the  effect  of  ascer- 
taining the  damages  upon  any  such  breach  at  1,000£.  For  we  see 
nothing  illegal  or  unreasonable  in  the  parties,  by  their  mutual  agree- 
ment, settling  the  amount  of  damages,  uncertain  in  their  nature, 
at  any  sum  upon  which  they  may  agree.  In  many  cases,  such  an 
agreement  fixes  that  which  is  almost  impossible  to  be  accurately 
ascertained :  and  in  all  cases  it  saves  the  expense  and  difficulty  of 
bringing  witnesses  to  that  point.  But  in  the  present  case,  the 
clause  is  not  so  confined ;  it  extends  to  the  breach  of  any  stipu- 
lation by  either  party.  If,  therefore,  on  the  one  hand,  the  plaintiff 
had  neglected  to  make  a  single  payment  of  31.  6s.  8d.  per  day,  or 
on  the  other  hand,  the  defendant  had  refused  to  conform  to  any 
usual  regulation  of  the  theatre,  however  minute  or  unimportant, 
it  must  have  been  contended  that  the  clause  in  question,  in  either 
case,  would  have  given  the  stipulated  damages  of  1,000Z.  But 
that  a  very  large  sum  should  become  immediately  payable,  in  conse- 
quence of  the  non-payment  of  a  very  small  sum,  and  that  the  for- 
mer should  not  be  considered  as  a  penalty,  appears  to  be  a  contra- 
diction in  terms ;  the  case  being  precisely  that  in  which  courts  of 
equity  have  always  relieved,  and  against  which  courts  of  law  have, 
in  modern  times,  endeavored  to  relieve,  by  directing  juries  to  assess 
the  real  damages  sustained  by  the  breach  of  the  agreement.  It  has 
been  argued  at  the  bar,  that  the  liquidated  damages  apply  to  those 
breaches  of  the  agreement  only  which  are  in  their  nature  uncer- 
tain, leaving  those  which  are  certain  to  a  distinct  remedy,  by  the 
verdict  of  a  jury.  But  we  can  only  say,  if  such  is  the  intention 
of  the  parties,  they  have  not  expressed  it ;  but  have  made  the 
clause  relate,  by  express  and  positive  terms,  to  all  breaches  of  every 


DAKIN   v.   "WILLIAMS.  435 

kind.  We  cannot,  therefore,  distinguish  this  case,  in  principle, 
from  that  of  Astley  v.  Weldon,  in  which  it  was  stipulated  that 
either  of  the  parties  neglecting  to  perform  the  agreement  should 
pay  to  the  other  of  them  the  full  sum  of  200^.,  to  be  recovered 
in  his  Majesty's  Courts  at  Westminster.  Here  there  was  a  distinct 
agreement,  that  the  sum  stipulated  should  be  liquidated  and  ascer- 
tained damages :  there  were  clauses  in  the  agreement,  some  sound- 
ing in  uncertain  damages,  others  relating  to  certain  pecuniary  pay- 
ments ;  the  action  was  brought  for  the  breach  of  a  clause  of  an 
uncertain  nature ;  and  yet  it  was  held  by  the  court,  that  for  this 
very  reason  it  would  be  absurd  to  construe  the  sum  inserted  in 
the  agreement  as  liquidated  damages,  and  it  was  held  to  be  a  penal 
sum  only.  As  this  case  appears  to  us  to  be  decided  on  a  clear  and 
intelligible  principle,  and  to  apply  to  that  under  consideration,  we 
think  it  right  to  adhere  to  it,  and  this  makes  it  unnecessary  to 
consider  the  subsequent  cases,  which  do  not  in  any  way  break  in 
upon  it.  The  consequence  is,  we  think  the  present  verdict  should 
stand,  and  the  rule  for  increasing  the  damages  be  discharged. 
Rule  discharged. 

Note.— See  Astley  v.  Weldon,  2  Bos.  &  Pul.  346  (1801).  An  intention  to 
make  the  sum  determined  on  as  liquidated  damages,  payable  on  the  breach  of 
minor  and  unimportant  parts  of  the  agreement  will  not  be  imputed  in  the  ab- 
sence of  language  determining  such  intention  with  precision.  Hoagland  v. 
Segur,  38  N.  J.  230. 


Liquidated  Damages  ;  Stipulations  where  Damages  are  uncertain  ; 
Release  of  Part  Performance  of  Covenant  ;  Covenants  not 
coupled  with  Condition. 


SUPREME   COURT,    NEW  YORK. 

[1837.1  Darin  v.  Williams  (17  Wend.  447.) 

Where  a  contract  mentions  a  certain  sum  to  he  forfeited  in  case  of  breach,  such  sum  is 
to  be  regarded  either  as  a  penalty  or  as  liquidated  damages,  according  to  the  intent 
of  the  parties,  if  such  intent  can  be  gathered  from  a  full  view  of  all  the  provisions 
of  the  contract.  Bat  where  the  intention  of  the  parties  is  doubtful,  and  the  dam- 
ages in  case  of  breach  are  of  such  a  nature  that  their  amount  can  be  definitely 
ascertained,  the  sum  named  will  be  deemed  a  penalty ;  if  they  are  uncertain  in  their 
nature,  it  will  be  regarded  as  liquidated  damages. 

Where  the  plaintiffs  purchased  the  printing  apparatus,  patronage  and  good  will  of  a 
newspaper  establishment  from  the  defendants,  who   covenanted    they   would    not 


436  LIQUIDATED   DAMAGES. 

publish  or  assist  in  publishing  any  rival  paper,  and  the  damages  were  fixed  at 
$3,000,  and  the  covenant  was  broken:  Held,  that  the  damages  were  uncertain  in 
their  nature,  and  therefore  the  $3,000  named  must  be  considered  stipulated  damages, 
recoverable  as  an  entirety  upon  the  breach. 

This  was  an  action  of  covenant,  tried  at  the  Oneida  Circuit. 

By  sealed  articles  of  agreement,  the  plaintiffs,  in  1825,  purchased 
from  the  defendants  an  establishment  for  the  publication  of  a  news- 
j>aper  called  the  Utica  Sentinel,  paying  $500  for  the  printing  mate- 
rials and  $3,000  for  the  "patronage  and  good  will,"  the  defendants 
at  the  same  time  covenanting  that  they  would  not  establish  or  aid  in 
establishing  or  printing  "  any  paper  of  a  literary,  political,  or  miscel- 
laneous character  in  the  village  of  Utica  or  county  of  Oneida,"  so 
long  as  the  plaintiffs  or  their  immediate  assigns  should  continue  to 
publish  any  paper  in  that  village.  By  the  penal  clause  of  the  agree- 
ment, the  defendants  "  for  themselves,  their  heirs,  &c,  obligate  and 
bind  themselves  to  the  strict  and  faithful  performance  of  this  cove- 
nant, and  every  part,  term  and  condition  thereof,  in  the  sum  of 
$3,000.  It  is  hereby  mutually  and  expressly  agreed,  by  and  between 
the  said  parties  to  these  presents,  that  the  aforesaid  sum  of  $3,000 
shall  be  and  hereby  is  fixed  and  settled  as  liquidated  damages,  and 
not  as  a  penal  sum  for  any  violation  of  the  preceding  covenant,  or 
any  of  its  terms  or  conditions." 

The  plaintiffs  alleged  in  their  declaration,  as  a  violation  of  these 
covenants,  that  the  defendants  had  at  different  times  been  accessary 
to  the  publishing  in  the  village  of  Utica  of  two  different  news- 
papers, called  the  "  Utica  Intelligencer"  and  the  "American  Citizen," 
and  demanded  judgment  for  the  $3,000  mentioned  in  the  agreement 
as  the  amount  of  damages.  The  defendants  traversed  these  allega- 
tions, and  denied  the  breaches  alleged.  The  jury,  by  a  special  ver- 
dict found  that  the  instrument  declared  on  was  duly  executed  ;  that 
in  January,  1826,  Williams  was  a  party  to  a  negotiation  between  one 
Tracy  and  one  Merrill,  a  journeyman  printer  employed  by  Williams, 
for  establishing  a  newspaper  in  Utica ;  that  he  sold  type  and  let  a 
printing  press  to  Merrill  for  that  purpose  ;  that  a  newspaper  of  a 
political  character,  called  the  "  Utica  Intelligencer,"  was  immediately 
thereafter  printed  by  Merrill ;  that  such  paper  could  not  have  been 
established  so  soon  by  two  or  three  weeks,  had  not  the  type  and 
press  been  furnished  by  Williams;  that  the  first  number  of  the 
"  Intelligencer  "  was  set  up  by  Merrill  and  his  apprentices  in  a  build- 
ing owned  by  Seward  and  occupied  by  Williams  ;  that  the  paper 
thus  commenced  was  continued  for  sixteen  months,  although  the 
numbers  subsequent  to  the  first  were  printed  in  a  building  other 


DAKIN  v.   WILLIAMS.  437 

than  that  occupied  by  Williams ;  and  that  the  press  let  and  one-third 
of  the  type  sold  by  Williams  to  Merrill  were  the  property  of  Wil- 
liams. The  jury  also  fonnd  that  in  June,  1830,  one  Wilson,  con- 
templating the  publication  in  Utica  of  a  paper  of  a  political,  miscel- 
laneous and  literary  character,  to  be  called  the  "  American  Citizen," 
employed  Williams  to  print  1,000  copies  of  the  first  number  of  such 
paper,  which  he  did  at  his  printing  office  in  Utica,  with  his  own 
press,  type  and  ink,  and  delivered  them  to  Wilson ;  that  it  was 
stated  in  the  paper  that  it  was  printed  by  Williams ;  that  the  print- 
ing office  of  Williams  was  an  old  established  office,  of  the  first  stand- 
ing and  reputation  in  the  country,  and  that  its  issuing  from  that 
office  was  calculated  to  give  credit  and  character  to  the  paper ;  that 
in  one  month  after  the  issuing  of  said  first  number  the  regular  pub- 
lication of  the  "  Citizen  "  was  commenced  by  Wilson,  and  continued 
for  29  weeks.  The  jury  also  found  that  during  the  time  of  the 
establishment  and  publication  of  these  two  papers,  the  plaintiffs  and 
their  assigns  had  continued  to  publish  a  paper  in  the  village  of 
Utica.  The  jurors  also  say  that  on  the  22d  of  January,  1830,  the 
plaintiff,  by  an  instrument  under  seal,  released  the  defendants  from 
their  covenant  as  to  the  publishing  of  an  anti-masonic  paper,  called 
the  "  Elucidator,"  so  long  as  it  should  be  anti-masonic  ;  but  whether 
or  not,  upon  the  whole  matter,  the  plaintiffs  are  entitled  to  recover 
the  $3,000,  they  submit  to  the  court  to  determine. 

By  the  Court,  Nelson,  Ch.  J. — [After  holding  that  two  stipula- 
tions in  the  covenant  had  been  violated,  namely  :  1.  The  stipulation 
that  the  defendants  would  not  suffer  a  paper  to  be  printed  or  pub- 
lished in  any  building  belonging  to  them  or  either  of  them  ;  and  2. 
The  stipulation  that  they  would  not  aid  or  assist,  or  be  in  any  man- 
ner accessory  to  the  printing  or  publishing  of  the  same  by  any  per- 
son whatever,  proceeded  as  follows  :] 

The  next  question  presented  upon  the  above  conclusion  is,  whether 
the  sum  of  $3,000  is  to  be  viewed  as  damages  liquidated  by  the  con- 
tract of  the  parties,  or  only  in  the  light  of  a  penalty  ?  There  are 
many  cases  in  the  English  books  in  which  this  question  has  been 
very  fully  examined  and  considered,  but  it  would  be  an  unprofitable 
consumption  of  time  to  go  over  them  with  a  view  or  expectation  of 
extracting  any  useful  general  principle  that  could  be  applied  to  this 
case.  The  following  are  the  leading  cases :  Astley  v.  Weldon  (2 
Bos.  &  Pul.  346)  ;  Barton  v.  Glover  (Holt's  N.  P.  R  43,  and  note)  ; 
Reilly  v.  Jones  (1  Bing.  302) ;  Davies  v.  Penton  (6  Barn.  &  Cress. 
216);  Crisdee  v.  Bolton  (3  Carr.  &  Payne,  240);  Randall  v.  Everest 
(2  Id.  577) ;  Kemble  y.  Farren  (6  Bing.  141).     In  our  court  are  the 


438  LIQUIDATED   DAMAGES. 

following :    Dennis  v.   Cummins   (3  Johns.   Cas.   297) ;    Slosson  v. 
Beadle  (7  Johns.  R.  72)  ;  Spencer  v.  Tilden  (5  Cow.  144,  and  note, 
p.  150) ;    Nobles  v.  Bates  (7  Id.  307) ;    Knapp  v.  Maltby  (13  Wend. 
587).     From  a  critical  examination  of  all  these  cases,  and  others  that 
might  be  referred  to,  it  will  be  found  that  the  business  of  the  court, 
in  construing  this  clause  of  the  agreement,  as  in  respect  to  every 
other  part  thereof,  is,  to  inquire  after  the  meaning  and  intent  of  the 
parties ;  and  when  that  is  clearly  ascertained  from  the  terms  and 
language  used,  it  must  be  carried  into  effect.     A  court  of  law  pos- 
sesses no  dispensing  powers  ;  it  cannot  inquire  whether  the  parties 
have  acted  wisely  or  rashly  in  respect  to  any  stipulation  they  may 
have  thought  proper  to  introduce  into  their  agreements.     If  they 
are  competent  to  contract  within  the  prudential  rules  the  law  has 
fixed  as  to  parties,  and  there  has  been  no  fraud,  circumvention  or 
illegality  in  the  case,  the  court  is  bound  to  enforce  the  agreement. 
Men  may  enter  into  improvident  contracts  where  the  advantage  is 
knowingly  and  strikingly  against  them  ;  they  may  also  expend  their 
property  upon  idle  or  worthless  objects,  or  give  it  away  if  they 
please  without  an  equivalent,  in  spite  of  the  powers  or  interference 
of  the  court ;  and  it  is  difficult  to  see  why  they  may  not  fix  for 
themselves  by  agreement  in  advance  a  measure  of  compensation, 
however  extravagant  it  may  be,  for  a  violation  of  their  covenant 
(they  surely  may  after  it  has  accrued),  without  the  intervention  of  a 
court  or  jury.     Can  it  be  an  exception  to  their  power  to  bind  them- 
selves by  lawful  contract  ?     "We  suppose  not ;  and  regarding  the  in- 
tent of  the  parties,  it  is  not  to  be  doubted  but  that  the  sum  of 
$3,000  was  fixed  upon  by  them  "  mutually  and  expressly,"  as  they 
say,  "  as  the  measure  of  damages  for  a  violation  of  the  covenant,  or 
any  of  its  terms  or  conditions."     If  it  be  said  that  the  measure  is  a 
hard  one,  it  may  be  replied,  that  the  defendants  should  not  have 
stipulated  for  it ;  or  having  been  thus  indiscreet,  they  should  have 
sought  the   only   exemption  which  was  still  within   their   power, 
namely,  the  faithful  fulfillment  of  their  agreement. 

In  the  case  of  Astley  v.  Weldon,  Lord  Eldon  repudiates  the  idea 
that  had  been  thrown  out  in  some  of  the  previous  cases,  that  if  the 
sum  would  be  enormous  and  excessive,  considered  as  liquidated  dam- 
ages, it  should  then  be  taken  as  a  penalty ;  and  maintains  the  ability 
of  the  party  to  make  a  contract  for  himself  in  fixing  the  amount  of 
damages  as  well  as  in  respect  to  any  other  matter.  All  the  judges 
adopt  the  position  that  the  question  must  be  determined  upon  the 
meaning  and  intent  of  the  parties.  A  principle  is  stated  in  that 
case  which  has  since  been  frequently  applied,  and  upon  which  the 


DAKIN   v.   WILLIAMS.  439 

«ase  was  finally  disposed  of,  namely,  that  where  a  doubt  appears 
whether  the  sum  inserted  be  intended  as  a  penalty  or  not,  if  a  certain 
damage  less  than  this  sum  be  made  payable  upon  the  face  of  the  in- 
strument, in  case  the  breach  occurs,  then  the  same  shall  be  construed 
to  be  a  penalty.  It  then  partakes  of  the  character  of  a  common 
money  bond,  where  the  payment  of  a  small  sum  is  secured  by  the 
forfeiture  of  a  large  one  in  case  of  default.  In  that  case  there  were 
several  stipulations  in  the  articles  of  agreement,  and  then  on  either 
neglecting  to  perform  on  his  part,  the  "  sum  of  2002.,  to  be  recov- 
ered in  any  of  his  majesty's  courts  of  record,"  was  to  be  paid. 
Some  of  the  breaches  were  in  their  nature  uncertain,  while  others 
were  certain,  and  as  the  2002.  were  given  to  secure  the  fulfillment 
of  all  of  them,  upon  the  principle  above  stated,  the  court  concluded 
it  was  to  be  deemed  in  the  light  of  a  penalty.  Ciiambre,  J.  (p.  345), 
observed,  "  that  there  was  one  case  in  which  the  sum  agreed  for 
must  always  be  considered  a  penalty ;  and  that  is,  where  the  pay- 
ment of  a  smaller  sum  is  secured  by  a  larger."  And  he  held  that 
the  court  could  not  garble  the  covenants,  and  hold  that  in  respect  to 
those  certain  the  large  sum  was  to  be  deemed  a  penalty,  but  dam- 
ages liquidated  as  to  those  uncertain,  as  the  concluding  clause  applied 
equally  to  all  of  them.  The  decision  of  the  case  of  Kemble  v.  Far- 
ren,  the  strongest  one  in  the  books  for  the  defendants,  was  put  upon 
this  principle  by  Chief  Justice  Tentdall.  There  some  of  the  stipula- 
tions were  certain,  such  as  the  one  in  which  the  plaintiff  had  agreed 
to  pay  the  defendant  SI.  6s.  8d.  every  night  in  which  the  theater 
would  be  open  during  the  season ;  others  were  uncertain.  The 
language  of  the  parties  in  fixing  the  sum  in  case  of  neglect  to  fulfill 
the  agreement,  or  any  of  the  stipulations,  was  as  particular  and 
specific  as  in  the  case  under  consideration,  using  affirmative  and 
negative  terms,  to  exclude  the  idea  of  a  penalty ;  but  as  it  extended 
equally  to  the  breach  of  every  stipulation,  those  certain  as  well  as 
those  uncertain,  the  case  was  supposed  to  be  brought  directly  within 
the  principle  of  Astley  v.  Walden.  The  chief  justice  concedes  that 
it  was  difficult  to  suppose  words  more  precise  or  explicit,  and  ad- 
mitted that  if  the  clause  had  been  limited  to  breaches  which  were 
of  an  uncertain  nature  and  amount,  the  court  would  have  considered 
it  as.  having  the  effect  of  ascertaining  the  damages  of  any  such 
breach  at  the  1,000?. ;  and  he  adds,  "  for  we  see  nothing  illegal  or 
unreasonable  in  the  parties,  by  their  mutual  agreement,  settling  the 
amount  of  damages,  uncertain  in  their  nature,  at  any  sum  upon 
which  they  may  agree."  The  case  under  consideration  falls  directly 
within  the  above  distinction  ;  for  the  concluding  clause  here,  secur- 


440  LIQUIDATED   DAMAGES. 

ing  the  fulfillment  of  the  preceding  covenant,  applies  to  stipulations 
wholly  uncertain  ;  and  it  may  be  added,  that  from  the  nature  of  the 
case  it  would  be  impossible  for  a  court  and  jury  to  ascertain,  with 
any  degree  of  accuracy,  the  amount  of  damages  actually  arising  out 
of  the  breach  of  them  to  the  prejudiced  party,  and  was,  therefore, 
a  very  fit  and  proper  case  for  the  liquidation  of  the  amount  by  the 
parties  themselves.  They  have  adopted  the  precise  sum  which  the 
plaintiffs  were  to  receive  for  the  good  will  and  patronage  of  the 
press,  the  very  benefit  which  this  clause  was  intended  more  effectu- 
ally to  secure  to  the  purchasers. 

[The  court  then  held  that  the  covenant  between  the  parties,  not 
being  coupled  with  a  condition,  was  divisible  and  subject  to  appor- 
tionment ;  and  that,  therefore,  the  release  of  the  covenant  in  respect 
to  the  printing  and  publishing  of  the  "  Elucidator "  did  not  dis- 
charge it  in  respect  to  other  matters.] 

The  remainder  of  the  opinion  was  as  follows : 

It  was  urged  on  the  argument,  assuming  there  had  been  a  viola- 
tion of  the  covenant,  that  the  damages  were  liquidated,  and  were 
not  in  the  nature  of  a  penalty,  and  that  the  release  had  not  the 
effect  to  discharge  them  ;  still  that  it  was  a  discharge  of  a  portion  of 
the  damages,  and  therefore  an  assessment  was  necessary  in  order  to 
ascertain  those  to  which  the  plaintiffs  were  entitled.  The  difficulty 
in  this  view  is,  that  it  assumes  what  the  case  does  not  authorize^ 
namely,  that  the  whole  sum  became  collectible  only  upon  an  entire 
breach  of  the  covenant,  or  rather  of  every  stipulation  in  it ;  and 
that,  as  a  portion  of  it  had  been  given  up,  a  rateable  deduction 
should  be  made  in  the  damages.  But  it  will  be  seen  that  this  sum 
in  damages  was  stipulated  for,  not  only  to  secure  the  faithful  per- 
formance of  the  whole  covenant,  but  of  "  every  part,  term  and  con- 
dition thereof,"  and  that  it  was  "  fixed  and  settled  as  liquidated 
damages,  &c,  for  any  violation  of  the  preceding  covenant,  or  any  of 
its  terms  or  conditions."  The  contingency,  therefore,  upon  which 
it  was  agreed  to  be  paid,  is  as  well  upon  the  doing  of  one  of  the 
prohibited  acts  as  upon  all  of  them  ;  and  if  any  part  of  the  sum  is 
forfeited,  the  whole  must  be. 

For  the  above  reasons  we  are  of  opinion  the  plaintiffs  are  entitled 
to  judgment  for  the  $3,000. 


PRICE   v.   GREEN.  441 


Liquidated  Damages  ;  Divisible  Covenant. 


COURT  OF  EXCHEQUER  CHAMBER. 

[1847.]    Price  v.  Green,  Executor  (16  Mees.  &  Wels.  346). 

By  deed,  reciting  that  A.  &  B.  carried  on  business  as  perfumers  in  partnership,  and  that 
it  had  been  agreed  between  them  that  B.,  ia  consideration  of  2,100/.,  should  assign 
to  A.  his  moiety  of  the  good  'will,  stock  in  trade,  &c,  of  the  copartnership,  B.,  in 
consideration  thereof,  covenanted  that  he  would  not,  during  his  life,  carry  on  the 
trade  of  a  perfumer  within  the  cities  of  London  and  Westminster,  or  within  the  dis- 
tance of  600  miles  from  the  same  respectively;  and  for  the  observance  of  this  cove- 
nant, he  bound  himself  to  A.,  his  executors,  &c,  in  the  sum  of  5,000?.,  by  way  of 
liquidated  damages,  and  not  of  penalty :  Held,  in  the  Exchequer  Chamber  (affirming 
the  judgment  of  the  Court  of  Exchequer),  that  this  covenant  was  divisible,  and  was 
good  so  far  as  it  related  to  the  cities  of  London  and  Westminster,  though  void  as  to 
the  600  miles;  that  a  breach,  that  B.  carried  on  the  trade  in  the  city  of  London,  was 
good ;  and  that  A.  was  entitled  to  recover,  in  respect  of  such  breach,  the  whole  sum 
of  5,000?. 

Qucere,  whether  a  bill  of  exception  lies  for  misdirection  of  a  judge  on  the  execution  of  a 
writ  of  inquiry. 

This  was  an  action  of  covenant,  for  the  breach  of  a  covenant  by 
the  plaintiff  in  error  (the  defendant  below),  contained  in  an  inden- 
ture made  between  him  and  John  Gosnell,  deceased,  whereby  he 
covenanted  not  to  carry  on  the  trade  of  a  perfumer,  toyman,  and 
hair-merchant,  within  the  cities  of  London  or  Westminster,  or  within 
the  distance  of  600  miles  from  the  same  respectively ;  and  for  the 
observance  of  which  covenant  the  defendant  bound  himself,  his 
executors,  &c,  in  the  sum  of  5,000^.,  as  and  by  way  of  liquidated 
damages,  and  not  by  way  of  penalty.  The  defendant  set  out  the 
deed  on  oyer,  and  then  pleaded  that  the  cities  of  London  and  West- 
minster, and  the  distance  of  600  miles  from  the  same  respectively, 
comprised  the  whole  of  England  and  Wales,  and  19-20ths  of  Scot- 
land, and  that  the  covenant  was  therefore  void  in  law. 

To  this  plea  there  was  a  demurrer,  on  which  the  Court  of  Ex- 
chequer gave  judgment  for  the  plaintiff  below  (13  M.  6c  W.  695). 

On  the  execution  of  the  writ  of  inquiry,  before  Pollock,  C.  B., 
the  jury;  under  the  direction  of  the  learned  judge,  assessed  the  dam- 
ages for  the  breach  of  covenant  at  the  full  sum  of  5,0001.  To  this 
direction  the  defendant's  counsel  tendered  a  bill  of  exceptions. 

A  writ  of  error  having  been  brought,  the  case  was  argued  in  this 
court,  in  Michaelmas  Vacation,  December  1,  1845. 


412  LIQUIDATED   DAMAGES. 

The  judgment  of  the  court  was  delivered  by 

Patteson,  J. — This  was  an  action  of  covenant,  by  the  executor  of 
John  Gosnell,  against  the  defendant,  for  the  sum  of  5,000Z.  as  liqui- 
dated damages,  for  the  breach  of  a  covenant  contained  in  an  inden- 
ture, which  is  set  out  on  oyer  upon  the  record. 

It  appears  by  the  indenture,  that  Gosnell  and  the  defendant  had 
been  partners  as  hair-dressers  and  perfumers  in  London.  The  part- 
nership was  agreed  to  be  dissolved ;  and  Gosnell  purchased  the  de- 
fendant's share  of  the  business  at  1,500Z.,  and  also  his  share  of  cer- 
tain leasehold  premises  at  600^.,  and  his  share  of  their  stock  in  trade 
at  4,149Z.  18s.  Gd.  secured  by  bond.  The  1,500Z.  is  recited  to  have 
been  paid ;  and  the  covenant  of  the  defendant  is  in  these  words  : 
"  And  in  pursuance  and  performance  of  the  agreement  in  this  be- 
half, and  in  consideration  of  the  said  sum  of  1,500Z.  to  the  said  Pees 
Price  by  the  said  John  Gosnell  paid  as  hereinbefore  mentioned,  he 
the  said  Pees  Price  doth  hereby  covenant,  promise,  and  agree  with 
and  to  the  said  John  Gosnell,  his  executors,  administrators,  and  as- 
signs, that  he  the  said  Pees  Price  shall  not  nor  will,  at  any  time  dur- 
ing his  life,  either  by  or  for  himself,  or  for  or  with  any  person  or 
persons  whomsoever  in  trust  for  him,  or  to  or  for  his  benefit  or  ad- 
vantage, use,  exercise,  or  carry  on,  within  the  cities  of  London  or 
Westminster,  or  within  the  distance  of  600  miles  from  the  same  re- 
spectively, the  trade  or  business,  or  trades  or  businesses,  of  perfumer, 
toyman,  and  hair-merchant,  or  any  other  trade  or  business  lately 
carried  on  by  them  the  said  Pees  Price  and  John  Gosnell  in  copart- 
nership together,  under  the  herein  before-mentioned  articles  of  co- 
partnership of  the  1st  of  January,  1829.  And  for  the  due  observ- 
ance and  performance  of  this  covenant  by  and  on  the  part  of  him  the 
said  Pees  Price,  he  the  said  Pees  Price  doth  hereby  bind  himself, 
his  heirs,  executors,  and  administrators,  to  the  said  John  Gosnell,  his 
executors,  administrators,  and  assigns,  in  the  sum  of  5,0001.,  as  and 
by  way  of  liquidated  damages,  and  not  of  penalty."  The  declaration 
then  states  a  breach  of  this  covenant  by  the  defendant  carrying  on 
the  business  of  a  perfumer  in  the  city  of  London.  The  defendant 
pleads  that  the  cities  of  London  and  Westminster,  and  600  miles 
from  the  same,  include  all  England,  whereby  the  indenture  is  void. 
To  the  plea  the  plaintiff  demurs,  and  judgment  has  been  given  for 
him  in  the  court  below. 

Upon  the  argument  in  this  court,  it  is  conceded  that  the  covenant 
is  void,  so  far  as  regards  the  distance  of  600  miles  from  London  and 
Westminster  ;  but  it  is  contended  for  the  defendant  in  error,  that 
the  covenant  is  divisible,  and  stands  good  so  far  as  regards  the  cities 


PRICE   v.   GREEN.  443 

of  London  and  "Westminster,  npon  winch  part  of  it  the  breach  is  as- 
signed. The  case  of  Mallan  v.  May,  in  the  Court  of  Exchequer  (11 
M.  &  W.  653),  is  an  express  decision  upon  the  point,  in  favor  of  the 
defendant  in  error  ;  but  having  been  decided  very  recently,  the 
present  writ  of  error  is  in  truth  brought  to  question  that  decision, 
as  much  as  the  judgment  in  the  principal  case. 

Had  the  words  of  this  covenant  formed  part  of  the  condition  of  a 
bond,  it  cannot  be  denied  that  they  might  be  taken  separately ;  for 
that  point  has  been  expressly  decided  in  Chesman  v.  Nainby  (2  Str. 
739 ;  2  Lord  Raym.  1156),  on  a  writ  of  error  from  the  Common 
Pleas,  and  again  in  the  same  case,  on  a  writ  of  error  to  the  House  of 
Lords  (1  Bro.  P.  C.  231).  Again,  it  cannot  be  denied,  that  if  this  in- 
denture had  contained  two  covenants  in  point  of  form,  the  one  re- 
lating to  London  and  Westminster,  and  the  other  to  a  distance  of 
600  miles  from  them,  the  invalidity  of  the  latter  would  in  no  way 
have  affected  the  former.  The  question,  therefore,  seems  to  be  one 
of  construction ;  whether,  from  the  language  used,  the  covenant  be 
capable  of  division.  Now,  if  such  language  admits  of  its  being  con- 
strued divisibly  in  the  condition  of  a  bond,  it  is  difficult  to  see  why 
it  is  not  equally  capable  of  such  construction  where  it  occurs  in  a 
covenant.  No  doubt  the  covenant  formed  the  consideration  for  the 
payment  of  1,500?.,  and  possibly  Gosnell  would  not  have  given  so 
large  a  sum,  unless  the  prohibition  to  trade  had  been  as  extensive  as 
by  the  whole  of  the  covenant  it  is  made  to  be  ;  but  this  is  conjecture 
only,  and,  independent  of  the  point  that  for  a  covenant  under  seal 
no  consideration  is  necessary,  it  should  be  observed,  that  the  restric- 
tion as  to  600  miles  from  London  and  Westminster  is  only  void,  not 
illegal ;  and  therefore,  the  rest  of  the  restriction  would  have  formed 
a  sufficient  consideration  for  the  agreement  to  pay  1,500?. 

Upon  the  whole,  we  are  of  opinion  that  this  covenant  is  divisible, 
and  that  the  judgment  of  the  Court  of  Exchequer  must  be  affirmed 
as  to  that  point. 

The  other  question  arises  upon  the  writ  of  inquiry  executed  be- 
fore the  Lord  Chief  Baron,  to  whose  direction  to  the  jury  a  bill  of 
exceptions  was  tendered.  The  first  objection  is,  that  on  a  writ  of  in- 
quiry the  judge  is  but  assessor  to  the  sheriff,  and  that  a  bill  of  ex- 
ceptions will  not  lie.  The  second  is,  that  the  jury  should  have  been 
directed  to  find  the  actual  damage  sustained,  and  not  the  whole 
5,000?.  As  we  are  of  opinion  that  the  direction  of  the  Lord  Chief 
Baron  was  right,  we  are  not  called  upon  to  give  any  opinion  on  the 
first  objection.  The  5,000?.  is  expressly  declared  by  the  covenant  to 
be  "  as  and  by  way  of  liquidated  damages,  and  not  of  penalty."     It 


444  LIQUIDATED   DAMAGES. 

is  a  sum  named  in  respect  of  the  breach  of  this  one  covenant  only, 
and  the  intention  of  the  parties  is  clear  and  unequivocal.  The  courts 
have  indeed  held  that,  in  some  cases,  the  words  "  liquidated  dam- 
ages" are  not  to  be  taken  according  to  their  obvious  meaning  ;  but 
those  cases  are  all  where  the  doing  or  omitting  to  do  several  things 
of  various  degrees  of  importance  is  secured  by  the  sum  named,  and, 
notwithstanding  the  language  used,  it  is  plain  from  the  whole  instru- 
ment that  the  real  intention  was  different.  Here,  however,  there 
is  but  one  thing  to  which  the  5,000^.  relates,  viz.,  the  restriction  of 
trade,  though  extended  to  two  different  districts  ;  and  it  is  plain  that 
the  parties  intended,  that  if  the  restriction  was  violated  in  either  dis- 
trict, the  sum  should  be  paid,  and  not  that  inquiry  should  be  made 
as  to  the  actual  damage  and  loss  sustained.  Upon  this  point,  there- 
fore, as  well  as  the  other,  we  are  of  opinion  that  the  judgment  must 
be  affirmed. 

Judgment  affirmed. 

Note. — Sainter  v.  Ferguson  (7  C.  B.  716),  was  an  action  of  assumpsit  for 
breach  of  the  following  agreement :  "  In  consideration  that  Joseph  Denby  Sainter, 
of  Macclesfield,  surgeon  and  apothecary,  will  engage  me,  the  undersigned 
William  Edward  Ferguson,  as  assistant  to  him  as  a  surgeon  and  apothecary,  I 
the  said  William  Edward  Ferguson,  promise  the  said  Joseph  Denby  Sainter  that 
I  will  not  at  any  time  practice,  in  my  own  name,  or  in  the  name  or  names  of  any 
other  person  or  persons,  as  a  surgeon  or  apothecary,  at  Macclesfield,  or  within 
seven  miles  thereof,  under  a  penalty  of  500/. :  and  I,  the  said  Joseph  Denby 
Sainter,  do  hereby  agree  with  the  said  William  Edward  Ferguson  to  engage  the 
said  William  Edward  Ferguson  as  an  assistant  to  me  as  surgeon  and  apothecary, 
on  the  terms  aforesaid."  Held  that  there  was  a  sufficient  consideration  for  the 
promise  of  B.,  and  that  the  contract  was  not  void  as  an  unreasonable  restraint  of 
trade :  Held,  also,  that  the  500Z.  was  not  a  penalty,  but  liquidated  damages. 


Liquidated  Damages  ;    Uncertain  Covenants. 


COURT  of  appeals,  new  YORK. 

[1857.]  Bagley  v.  Peddie  et  al  (10  N.  Y.  409). 

Where  an  instrument  under  seal  contained  covenants  of  such  a  nature  that  the  damages 
arising  from  their  breach  would  be  uncertain  and  difficult  of  accurate  determination, 
and  was  accompanied  by  a  bond  which  stipulated  that  the  sum  of  $3,000  should  be 
deemed  to  be  "  liquidated  damages,  and  not  by  way  of  penalty :"  Held,  in  an  action 
for  the  breach,  that  $3,000  should  be  considered  as  liquidated  damages  contemplated 
by  the  parties,  and  that  this  amount  was  recoverable,  notwithstanding  extrinsic 
evidence  might  have  enabled  a  jury  to  determine  the  amount  of  some  of  the  items  of 
damage. 


BAGLEY  t.    PEDDIE.  445 

The  defendant,  Charles  B.  Peddie,  by  sealed  articles  of  agree- 
ment, covenanted  with  the  plaintiff,  a  manufacturer  of  gold  pens,  to 
serve  him  for  four  years.  The  agreement  also  contained  covenants 
against  disclosing  the  secrets  of  the  business  or  any  improvements 
or  discoveries  in  the  machinery  or  processes  employed,  against  fraud 
or  embezzlement,  and  for  the  keeping  of  just  and  true  accounts. 

Thomas  B.  Peddie  joined  with  Charles  B.  Peddie  in  executing  a 
bond  to  the  plaintiff,  "in  the  sum  of  $3,000,  as  liquidated  damages, 
and  not  by  way  of  penalty  or  otherwise,"  in  which,  after  reciting 
the  above  covenants,  and  avoiding  the  bond  in  case  of  their  perform- 
ance, continues  :  "  But  if  the  said  Charles  B.  Peddie  shall  refuse  to 
continue  with  and  serve  the  said  Albert  G.  Bagley,  or  shall  violate 
any  of  the  covenants  in  said  agreement  mentioned,  then  the  above 
bounden  Charles  B.  Peddie  and  Thomas  B.  Peddie,  their  heirs,  ex- 
ecutors or  administrators,  shall  pay  or  cause  to  be  paid  to  the  said 
Albert  G.  Bagley,  his  executors,  administrators  or  assigns,  the  above 
mentioned  sum  of  three  thousand  dollars,  liquidated  damages,  and 
this  obligation  to  remain  in  full  force  and  virtue." 

The  plaintiff  commenced  an  action  on  the  bond,  in  the  Superior 
Court  of  New  York  city,  alleging  breach  of  the  agreement,  and 
claimed  to  recover  $3,000  as  liquidated  damages.  No  special  dam- 
age was  proved  at  the  trial,  and  the  plaintiff  was  non-suited,  on  the 
ground  that  it  was  not  a  case  of  liquidated  damages.  The  judg- 
ment was  affirmed  at  general  term,  and  the  plaintiff  appealed  to  the 
Court  of  Appeals. 

Shankland,  J. — The  principal  question  to  be  settled  in  this  case 
is,  whether  the  parties  have  so  contracted  as  to  have  fixed  the 
amount  of  damages  to  be  recovered  of  the  defendants  in  case  of  non- 
performance by  Charles  B.  Peddie.  Although  the  courts  have  uni- 
formly conceded  to  parties  the  right  to  fix  the  amount  of  damages 
in  advance  of  the  breach  of  the  contract,  and  at  any  sum,  however 
disproportioned  to  the  real  damages,  they  shall  see  fit,  and  have  like- 
wise conceded  that  it  is  a  question  of  intention,  to  be  derived  from 
the  scope  and  tenor  of  the  agreement,  yet,  when  the  judicial  mind 
has  acted  upon  this  class  of  cases,  it  is  evident  how  repugnant  it  has 
been  to  enforce  them  according  to  the  plainly  expressed  language  of 
the  contracting  parties.  Hence  have  sprung  up  a  series  of  artificial 
rules  peculiar  to  contracts  of  this  character,  which,  while  they  osten- 
sibly profess  to  comply  with  the  fundamental  canons  of  construction 
appertaining  to  the  legal  science,  contrive  to  contravene  them  by 
artificial  distinctions  and  limitations.  I  will  repeat  some  of  the 
rules  found  in  the  books  :    First.  The  language  of  the  agreement  is 


446  LIQUIDATED   DAMAGES. 

not  conclusive,  and  the  effort  of  the  court  is  to  learn  the  intent  of 
the  parties.  Hence  the  term  "  liquidated  damages  "  is  not  sufficient 
to  control  the  construction,  if  the  court  can  discover  in  the  other 
parts  of  the  instrument  reason  even  to  doubt  as  to  the  intention  of 
the  parties  ;  Second.  Where  the  word  penalty  is  used  it  is  generally 
conclusive  against  its  being  held  liquidated  damages,  however  strong 
the  language  of  other  parts  of  the  instrument  in  favor  of  such  con- 
struction ;  Third.  If  the  sum  stipulated  is  to  be  paid  on  the  non- 
payment of  a  less  sum  which  is  certain  in  amount  (or,  as  some  judges 
say,  can  be  easily  ascertained  by  a  jury),  and  made  payable  by  the 
same  instrument,  then  it  will  be  treated  as  a  penalty  ;  Fourth.  "When 
the  agreement  is  in  the  alternative  to  do  an  act  or  pay  a  given  sum 
of  money,  the  court  will  hold  the  party  failing  to  have  had  his  elec- 
tion, and  compel  him  to  pay  the  money  ;  Fifth.  If  the  sum  be  evi- 
dently fixed  to  evade  the  usury  laws,  or  any  other  statutory  laws,  or 
to  cloak  oppression,  t^e  court  will  relieve  by  treating  it  as  a  penalty  ; 
Sixth.  If,  independently  of  the  stipulated  damages,  the  damages 
would  be  wholly  uncertain  and  incapable  of  being  ascertained  except 
by  conjecture,  in  such  case  the  damages  will  be  considered  liquidated 
if  they  are  so  denominated  in  the  instrument ;  Seventh.  If  the  lan- 
guage of  the  parties  evince  a  clear  and  undoubted  intention  to  fix 
the  sum  mentioned  as  liquidated  damages  in  case  of  default  of  per- 
formance of  some  act  agreed  to  be  done,  then  the  court  will  enforce 
the  contract,  if  legal  in  other  respects. 

The  language  of  the  instrument  declared  on  is  clear  and  distinct 
in  denominating  the  $3,000  liquidated  damages,  and  expressly  nega- 
tives the  idea  of  its  being  inserted  as  a  penalty.  This  occurs  in  that 
part  of  the  bond  where  the  penal  sum  is  usually  inserted,  and  the 
same  language  denominating  it  liquidated  damages  is  repeated  at  the 
close  of  the  condition  of  the  bond.  The  word  penalty  is  not  used  in 
the  instrument,  nor  any  other  word  of  a  similar  import.  The  lan- 
guage of  the  instrument  is  unambiguous  ;  and,  according  to  the 
usual  rules  of  construction,  the  duty  of  interpretation  is  not  imposed 
upon  the  court.  But  the  rules  applied  to  such  agreements  are  pe- 
culiar, and  it  is  necessary  to  see  whether  the  case  falls  within  any  of 
the  rules  above  given,  which  will  enable  us  to  declare  the  sum  de- 
nominated liquidated  damages,  and  not  a  penalty,  a  mere  penalty 
nevertheless. 

The  court  below  thought  some  of  the  covenants  such  that  the 
damages  for  their  breach  could  be  readily  ascertained  by  a  jury ;  for 
instance,  the  covenant  against  wrongfully  detaining  the  plaintiff's 
moneys  or  property,  and  that  requiring  Peddie  to  give  a  true  ac- 
count of  the  things  committed  to  his  management. 


BAGLEY  v.  PEDDIE.  44T 

I  propose  to  look  into  those  cases  where  it  has  been  held  that, 
where  the  damages  are  certain,  the  sum  mentioned  as  liquidated 
damages  may  be  held  as  a  penalty  only,  in  order  to  see  whether  they 
were  as  uncertain  as  in  this  case. 

Spear  v.  Smith  (1  Denio,  464),  was  on  an  agreement  to  arbitrate. 
By  the  submission,  the  defendant  agreed  to  give  up  to  the  plaintiff 
the  possession  of  certain  property,  and  the  arbitrators  were  to  decide 
what  damages  either  party  was  to  have  in  consequence  of  the  non- 
fulfillment of  the  contract  concerning  it  and  other  matters.  The 
submission  contained  the  following  clause  :  "  I,  the  said  Moses 
Smith,  agree  to  pay  to  said  W.  M.  Spear  the  sum  of  one  hun- 
dred dollars,  as  the  ascertained  and  liquidated  damages,  if  I  shall 
refuse  to  abide  the  arbitrator's  decision ;  and  I,  the  said  Vm.  M. 
Spear,  agree  to  pay  the  like  sum  to  said  Smith,  as  ascertained  and 
liquidated  damages,  if  I  shall  refuse  to  abide  such  decision."  The 
arbitrators  awarded  that  the  defendant  should  pay  the  plaintiff 
$10.40  by  a  specified  day,  which  he  failed  to  pay,  and  he  also  failed 
to  give  possession  of  the  property  in  pursuance  of  the  agreement. 
The  Supreme  Court  held  that  the  sum  to  be  paid  was  fixed  by  the 
arbitrators,  with  interest,  and  being  thus  easily  ascertained,  the  $100 
must  be  regarded  as  a  penalty. 

Kemble  v.  Farren  (6  Bing.  141),  was  an  action  by  the  manager 
against  an  actor  for  a  violation  of  an  agreement  to  perform  at 
Covent  Garden  for  four  years.  The  plaintiff  agreed  to  pay  defend- 
ant SI.  6s.  Sd.  every  night  the  theatre  should  be  open,  and  a  benefit 
night  during  each  season.  The  agreement  contained  a  clause  that  if 
either  of  the  parties  should  neglect  or  refuse  to  fulfill  the  said  agree- 
ment or  any  part  thereof,  or  any  stipulation  therein  contained,  such 
party  should  pay  to  the  other  1,000^.  liquidated  damages,  and  not  a 
penalty  or  penal  sum,  or  in  the  nature  thereof.  The  breach  was  the 
defendant's  refusal  to  act  during  the  second  season  ;  and  one  ques- 
tion was,  whether  this  was  a  case  of  liquidated  damages,  and  it  was 
held  not  to  be,  because  the  agreed  damages  applied  to  a  breach  of 
the  agreement  to  pay  a  certain  sum  (SI.  6s.  Sd.  a  day  to  defendant), 
as  well  as  to  covenants  where  the  damages  were  uncertain  ;  there- 
fore, as  it  could  not  be  considered  otherwise  than  as  a  penalty,  as  to 
such  fixed  sum,  it  must  also  be  construed  in  the  same  way  in  respect 
to  those  covenants  of  which  the  breach  would  result  in  uncertain 
damages  ;  and  it  was  likewise  in  this  respect  in  the  case  of  Astley  v. 
Weldon  (2  Bos.  &  Pul.  346). 

The  case  of  Davies  v.  Penton  (6  Barn.  &  Cress.  216),  seems  to 
have  been  decided  not  to  be  a  case  of  liquidated  damages  on  two 


448  LIQUIDATED   DAMAGES. 

grounds  :  First.  Because  the  words  penalty  and  liquidated  damages 
were  both  used,  and  therefore  brought  the  case  within  the  second 
rule  above  mentioned  ;  and  Second.  Because  the  greater  sum  was 
inserted  to  secure  the  payment  of  a  less  fixed  sum  agreed  to  be  paid 
in  the  same  instrument. 

The  above  cases  will  serve  to  illustrate  the  kind  of  certainty  as 
to  the  sum  to  be  paid  as  damages  for  breach  of  an  agreement  in 
order  to  hold  the  larger  sum  agreed  to  be  paid  on  such  breach  a 
mere  penalty.  They  are  cases  where  the  lesser  sum  is  named  spe- 
cifically in  the  instrument  itself,  or  depends  on  the  award  of  arbi- 
trators. These  and  similar  cases  are  the  cases  of  certain  damages  to 
which  the  courts  allude  in  the  third  rule. 

We  will  now  contrast  with  the  above  cases  those  falling  within 
the  sixth  rule,  where  the  damages  are  uncertain.  Dakin  v.  Williams 
(IT  Wend.  447),  was  a  case  where  the  defendant  sold  the  plaintiff  a 
printing  press  and  the  good  will  of  the  business  for  $3,500,  and  the 
defendant  agreed  not  to  carry  on  the  business  in  the  county  of 
Oneida,  and  fixed  and  liquidated  $3,000  as  the  damages  if  he  vio- 
lated that  provision.  This  was  held  to  liquidate  the  damages,  be- 
cause the  real  damage  was  uncertain,  and  the  intent  of  the  parties 
clear  to  fix  the  damages.  So,  in  Knapp  v.  Maltby  (13  Wend.  587), 
it  was  held  that  the  damages  for  not  assigning  a  lease  to  the  plaintiff 
were  of  uncertain  character,  and  would  support  an  agreement  for 
liquidated  damages.  So  in  Price  v.  Green  (16  Mees.  tfc  Wells.  346), 
it  was  held  that  where  the  defendant  agreed  not  to  carry  on  the 
business  of  perfumery  in  London,  the  damages  were  uncertain 
within  the  rule.  So  in  Galsworthy  v.  Strutt  (1  Wels.  Hurl.  & 
Gord.  Excheq.  R.  659),  where  one  attorney  agreed  with  another 
not  to  carry  on  the  business  of  an  attorney  within  fifty  miles,  nor 
interfere  with  or  solicit  the  clients  of  the  late  co-partnership,  it  was 
held  a  case  of  uncertain  damages. 

The  case  at  bar  seems  to  me  to  fall  within  the  sixth  rule,  the 
damages  being  wholly  uncertain  and  depending  entirely  on  proof 
aliunde  the  instrument  declared  on. 

The  plaintiff  was  a  gold  pen  manufacturer,  and  would  probably 
have  to  intrust  those  whom  he  took  into  his  employ  with  the  secrets 
of  his  trade  and  the  materials  used  therein  ;  and  it  would  be  difficult 
to  prove  the  actual  damage  he  would  sustain  by  their  leaving  his 
employ,  revealing  the  secret  to  others,  or  embezzling  his  materials. 
It  was  to  guard  against  these  contingencies  that  he  required  the  de- 
fendant to  give  the  bond  in  suit,  with  stipulated  damages,  in  order 
to  supersede  proof  in  case  of  breach  of  any  of  its  provisions.     From 


BAGLEY   v.   PEDDIE.  449 

the  nature  of  the  employment  it  would  be  difficult  to  prove  how 
much  money  the  person  employed  would  or  might  detain,  or  how 
much  of  the  materials  he  might  refuse  to  give  an  account  of.  The 
damages  to  result  from  a  breach  of  any  of  the  stipulations  of  the 
agreement  being  uncertain  and  conjectural,  I  hold  the  case  one  of 
liquidated  damages,  and  the  judgment  should  therefore  be  reversed, 
and  a  new  trial  awarded  in  the  court  below. 

Paige,  J. — The  condition  of  the  bond  of  the  defendants  in  this 
case  required  the  defendant,  Charles  B.  Peddie,  to  do  several  acts 
specified  in  an  agreement  accompanying  the  bond,  the  damages  for 
the  non-performance  of  some  of  which  could  not  be  measured  by 
any  exact  pecuniary  standard,  but  as  to  others  the  damages  were 
certain  and  could  be  easily  ascertained  by  a  jury ;  and  the  bond  de- 
clares that  if  the  defendant,  Charles  B.  Peddie,  should  violate  any 
of  the  covenants  in  the  agreement  mentioned,  the  defendants  should 
pay  $3,000  liquidated  damages.  This  is  a  case,  therefore,  where, 
within  the  authorities,  the  sum  stipulated  to  be  paid  as  damages 
must  be  considered  as  a  penalty,  and  not  as  liquidated  damages. 
The  law  on  this  subject,  in  my  opinion,  is  correctly  laid  down  by 
Judge  Sandfokd  in  the  court  below  (5  Sandf.  S.  C.  P.  192). 

The  judgment  should  be  affirmed. 

Bowen,  J.,  concurred  in  this  opinion ;  Comstock,  J.,  expressed 
no  opinion ;  all  the  others  concurring  with  Siianklajstd,  J. 

Judgment  reversed  and  new  trial  ordered. 

Note. — See  Lamprnan  v.  Cochran,  10  N.  Y.  275.  The  true  principle  to  be 
drawn  from  the  decisions  is,  that  the  couit  must,  in  each  case,  gather  from 
the  whole  instrument  what  was  the  real  intention  of  the  parties.  See  Lea 
v.  Whitaker,  L.  R.  8  C.  P.  70  (1872);  Magee  v.  Lavel,  L.  R.  9  C.  P.  107;  30  L. 
T.  N.  S.  C.  P.  1G9;  Huff  v.  Lawlor,  45  Ind.  80  (1873) ;  Noyes  v.  Phillips,  CO  K 
Y.  408. 

In  an  action  on  a  collateral  bond,  with  a  penalty  conditioned  for  the  perform- 
ance of  the  contract,  the  penalty  limits  the  recovery.  But  where  the  penalty  is 
contained  in  the  agreement  inter  partes,  the  plaintiff  has  his  election  to  sue  either 
for  the  penalty  or  for  a  breach  of  the  contract,  and  in  this  case  the  recovery  is 
not  limited  to  the  penalty.     lb. 

A  covenant  to  pay  heavy  liquidated  damages  in  case  of  non-performance  of  a 
contract,  so  far  as  it  is  clearly  applicable,  will  be  enforced,  but  it  will  not  be  ex- 
tended by  implication.  Defendant  contracted  to  sell  to  plaintiff  certain  premises, 
and  at  a  specified  time  and  place,  upon  payment  of  the  purchase  money,  to  execute 
and  deliver  a  proper  deed  for  the  conveyance  of  the  fee  simple,  free  of  incum- 
brances, containing  covenants  against  the  acts  of  the  grantor.  Jn  case  of  failure 
or  refusal  to  execute  and  deliver  a  proper  deed,  as  specified,  defendant  agreed  to 
pay  $5,000,  which  was  stipulated  as  liquidated  damages  for  such  non-perform- 
ance. Held,  that  this  covenant  applied  only  to  the  agreement  to  execute  a  deed, 
29 


450  LIQUIDATED   DAMAGES.' 

not  to  the  -warranty  of  title  implied  from  the  agreement  to  sell,  and  that  where  a 
deed  was  tendered  in  form,  as  prescribed  by  the  contract,  a  defect  of  title  beyond 
the  power  of  defendant  to  remedy  did  not  render  it  liable  thereon.  For  a  breach 
of  the  implied  warranty  of  title,  where  the  contract  is  made  in  good  faith  and  is 
broken  by  reason  of  the  inability  of  the  vendor  to  make  a  good  title,  the  vendee 
is  only  entitled  to  nominal  damages  beyond  his  expenses.  Leggett  v.  The 
Mutual  Life  Insurance  Company  of  New  York,  53  N.  Y.  894. 


Penalty  ;  Forfeiture  ;  Vendor  and  Purchaser. 


COURT  OF  APPEALS  IN  CHANCERY. 


[1873.]    In  re  Dagenham  (Thames)  Dock  Company,  Ex  parte 
Hulse  (Law  K.  8  Oh.  App.  1022). 

A  company  incorporated  by  Act  of  Parliament  for  making  a  dock  agreed  with  a  land- 
owner to  purchase  a  piece  of  land  for  4,000?.,  of  which  2,000?.  was  to  be  paid  at  once, 
and  the  remaining  2,000/.  on  a  future  day  named  in  the  agreement,  with  a  provision 
that  if  the  whole  of  the  2,000?.  and  interest  was  not  paid  off  by  that  day,  in  which 
respect  time  was  to  be  of  the  essence  of  the  contract,  the  vendors  might  repossess 
the  land  as  of  their  former  estate,  without  any  obligation  to  repay  any  part  of  the 
purchase-money : 

Held  (affirming  the  decision  of  the  Master  of  the  Rolls),  that  this  stipulation  was  in  the 
nature  of  a  penalty,  from  which  the  company  was  entitled  to  be  relieved  on  pay- 
ment of  the  balance  of  the  purchase-money,  with  interest. 

This  was  a  motion  by  Sir  Edward  Hulse  and  his  trustees,  by  way 
of  appeal  from  a  decision  of  the  Master  of  the  Holls  refusing  to  order 
delivery  up  of  certain  lands  to  the  applicants. 

The  Dagenham  (Thames)  Dock  Company  was  incorporated  by 
statute  18  &  19  Yict.  ch.  162,  for  the  purpose  of  making  a  dock  on  the 
north  side  of  the  Thames,  and  the  time  for  the  purchase  of  lands  and 
the  completion  of  the  works  was  extended  by  25  &  26  Yict.  ch.  213, 
till  the  expiration  of  five  years  from  the  passing  of  the  latter  act. 

On  the  14th  of  August,  1865,  an  agreement  was  entered  into  be- 
tween Sir  Edward  Hulse  (tenant  for  life  of  a  settled  estate),  of  the 
first  part,  G.  E.  Eyre  and  F.  Eyre  (trustees  with  a  power  of  sale),  of 
the  second  part,  and  the  company,  of  the  third  part,  that  the  trustees 
of  the  power  of  sale  should  sell,  and  the  company  should  purchase, 
the  lands  therein  described  for  4,000£.,  of  which  2.000Z.  was  to  be 
paid  on  the  execution  of  the  agreement,  whereupon  the  company  was 
to  be  let  into  possession,  and  the  remaining  2,000Z.,  with  interest 
from  the  date  of  the  agreement,  was  to  be  paid  on  the  1st  of  Novem- 


IN  RE   DAGEXHAM   (THAMES)  DOCK   CO.  451 

ber  then  next,  when  the  purchase  was  to  be  completed.  This  agree- 
ment contained  a  clause  providing  that  in  case  the  second  sum  of 
2,000/.  and  all  interest  thereon  should  not  be  entirely  paid  off  and 
discharged  by  the  7th  of  August,  1867,  in  which  respect  time  should 
be  of  the  essence  of  the  contract,  it  should  be  lawful  for  the  trustees 
to  re-enter  upon  the  lands  and  repossess  and  enjoy  them  as  in  their 
former  estate,  and  to  eject  the  company,  without  any  obligation  on 
the  part  of  the  trustees  to  repay  to  the  company  any  part  of  the 
4,000?.  which  might  have  been  previously  paid,  or  any  interest 
thereon,  which  should  be  absolutely  forfeited  to  the  vendors.  And  it 
was  provided  that,  save  as  expressed  by  the  agreement,  the  parties 
should  stand  in  the  same  position  with  reference  to  the  Companies 
Clauses  Consolidation  Act,  1845,  the  Lands  Clauses  Consolidation 
Act,  1845,  and  the  Harbors,  Docks,  and  Piers  Clauses  Act,  1847,  and 
the  special  act  of  this  company,  as  if  this  agreement  had  not  been 
made. 

The  first  2,0001.  was  paid  on  the  execution  of  the  agreement,  and 
the  company  was  let  into  possession. 

By  an  agreement  of  the  6th  of  August,  1867,  indorsed  on  the 
above  agreement,  the  time  for  payment  of  the  remaining  2,000/.  was 
extended  until  the  1st  of  August,  1868. 

By  agreement,  dated  the  1st  of  August,  1868,  made  between  Sir 
E.  Hulse,  of  the  first  part,  G.  E.  Eyre  and  H.  H.  Berens  (the  then 
trustees)  of  the  second  part,  and  the  company,  of  the  third  part,  it  was 
agreed  that  the  time  for  payment  of  the  2,000/.,  with  an  arrear  of  in- 
terest, should  be  further  extended  till  the  1st  of  November,  1869. 
And  it  was  further  agreed  that,  if  the  undertaking  should  be  aban- 
doned, or  in  case  the  2,000/.,  with  all  interest  from  the  date  of  the 
agreement  of  the  14th  of  August,  1865,  to  the  day  of  payment,  should 
not  be  entirely  paid  off  and  discharged  by  the  1st  of  November,  1869, 
in  all  which  respects  time  was  to  be  of  the  essence  of  the  contract,  it 
should  be  lawful  for  the  trustees,  their  heirs  or  assigns,  notwithstand- 
ing that  the  conveyance  might  have  been  executed,  and  notwithstand- 
ing any  intermediate  negotiation  or  correspondence,  to  enter  into  and 
upon  and  take  possession  of  the  lands  and  all  works  thereon,  and  the 
same  to  have  again,  retain,  repossess,  and  enjoy  as  in  their  former  es- 
tate, and  to  eject  the  company  tflerefrom,  without  any  obligation  on 
the  part  of  the  trustees  named  in  the  first  agreement,  or  the  trustees 
named  in  the  present  agreement,  to  repay  to  the  company  the  2,000/. 
already  paid,  or  any  part  of  the  balance  of  the  4,000/.  still  remaining 
due  which  might  have  been  previously  paid,  or  any  interest  thereon, 
which  should  be  absolutely  forfeited  to  the  trustees,  any  conveyance 


452  LIQUIDATED  DAMAGES. 

of  the  land,  and  anything  therein  or  in  the  agreements  to  the  contrary 
notwithstanding;  but  nothing  in  the  agreement  was  to  prejudice  the 
right  of  the  vendors  to  take  proceedings  to  enforce  completion  if  the 
purchase  was  not  completed  by  the  1st  of  November,  1869.  And  it 
"was  declared,  that  in  all  respects  and  in  every  case  time  should  be  of 
the  essence  of  the  contract ;  and  that  all  the  powers  by  the  first  agree- 
ment given  to  the  parties  thereto  of  the  first  and  second  parts,  their 
respective  heirs,  executors,  administrators,  or  assigns,  might  be  exer- 
cised by  the  parties  hereto  of  the  first  and  second  parts,  their  respect- 
ive heirs,  executors,  administrators,  and  assigns.  And  the  company 
covenanted  with  the  trustees  that  the  company  would,  on  the  1st  of 
November,  1869,  pay  to  the  trustees,  their  heirs,  executors,  adminis- 
trators, and  assigns,  the  2,000^.,  the  balance  of  the  purchase-money, 
wTith  interest  from  the  1-ith  of  August,  1865,  and  the  cost  therein 
mentioned. 

The  money  was  not  paid.  On  the  7th  of  August,  1869,  a  petition 
was  presented  to  wind  up  the  company ;  and  on  the  11th  of  Decem- 
ber, 1869,  an  order  for  winding  up  was  made. 

On  the  25th  of  May,  1870,  the  trustees  commenced  an  action  of 
ejectment;  and  on  the  20th  of  February,  1871,  an  order  was  made  by 
consent  in  the  winding-up  that  the  plaintiffs  should  be  at  liberty  to 
sign  judgment,  they  undertaking  not  to  issue  execution  until  further 
order,  and  to  abide  by  any  order  the  court  might  make  as  to  the  prop- 
erty affected  by  the  judgment,  and  as  to  the  costs  in  the  action,  or 
otherwise. 

On  the  26th  of  March,  1873,  the  appellants  applied  for  an  order 
that  they  might  be  at  liberty  to  issue  execution,  and  that  the  liquida- 
tor and  the  company  might  deliver  up  to  the  applicants  possession  of 
the  lands  free  from  all  claims  by  the  company.  The  Master  of  the 
Rolls  offered  to  the  applicants  an  order  for  sale  and  payment,  as  in 
the  ordinary  case  of  vendor's  lien.  This  offer  being  declined,  His 
Lordship  refused  to  make  any  order. 

Sir  W.  M.  James,  L.  J. — In  my  opinion  this  is  an  extremely  clear 
case  of  a  mere  penalty  for  non-payment  of  the  purchase-money.  If 
the  agreement  were  to  be  construed  as  the  appellants  contend,  I 
greatly  doubt  whether  it  would  not  be  void  as  being  ultra  vires. 

[The  learned  Lord  Justice,  after  commenting  briefly  on  the  griev- 
ous wrong  it  would  be  to  the  shareholders  and  debenture-holders,  to 
hold  that  a  company  authorized  to  acquire  land  for  purposes  beneficial 
to  the  public,  could  make  a  valid  bargain  with  a  landholder,  entitling 
him,  in  case  any  part  of  the  purchase-money  should  remain  unpaid  on 
a  particular  day,  to  take  back  the  land  with  all  the  works  erected  on  it 
by  the  company,  closed  as  follows  :] 


MARZETTI   v.   WILLIAMS.  453 

I  agree  with  the  Master  of  the  Rolls  that  this  is  a  penalty  from 
which  the  company  are  entitled  to  be  relieved  on  payment  of  the  resi- 
due of  the  purchase-money  with  interest. 

Sir  G.  Mellish,  L.  J. — I  am  of  the  same  opinion.  I  think  that 
the  last  agreement  makes  it  more  clear  than  any  of  the  others  that  this 
was  only  a  penalty.  I  have  always  understood  that  where  there  is  a 
stipulation  that  if,  on  a  certain  day,  an  agreement  remains  either 
wholly,  or  in  any  part  unperformed — in  which  case  the  real  damage 
may  be  either  very  large  or  very  trifling — there  is  to  be  a  certain  for- 
feiture incurred,  that  stipulation  is  to  be  treated  as  in  the  nature 
of  a  penalty.  Here,  when  you  look  at  the  last  agreement,  it  provides 
that  if  the  whole  2,0001.  with  interest,  or  any  part  of  it,  however 
small,  remains  unpaid  after  a  certain  day,  then  the  company  shall  for- 
feit the  land  and  the  portion  of  the  purchase-money  which  they  have 
paid.  It  appears  to  me  that  this  is  clearly  in  the  nature  of  a  penalty, 
from  which  the  court  will  relieve. 


CONTRACTS    TO  PAY  MONEY. 

Nominal  Damages  foe  Breach  of  Implied  Contract  to  Pay 

Money. 


THE  COUKT  OF  KING  S  BENCH. 

[1830]    Marzetti  v.  Williams  (1  Barn.  &  Adol.  [415]  541). 

A  banker  is  bound  by  law  to  pay  a  check  drawn  by  a  customer,  within  a  reasonable  time 
after  he  the  banker  has  received  sufficient  funds  belonging  to  the  customer  ;  and  the 
latter  may  maintain  an  action  of  tort  against  the  banker  for  refusing  payment  of  a 
check  under  such  circumstances,  although  he  has  not  thereby  sustained  any  actual 
damage. 

Declaration  stated,  that  the  plaintiff  long  before  and  at  the  time 
of  the  committing  of  the  grievances  thereinafter  mentioned,  was  and 
from  thence  hitherto  had  been  a  trader,  to  wit,  a  wine  merchant  and 
a  ship  and  insurance  agent,  and  the  trades  and  businesses  of  a  wine 
merchant  and  ship  and  insurance  agent  used,  exercised,  and  carried 
on,  and  still  used,  &c.  to  wit,  at  London.  That  the  defendants  before 
and  at  the  time  of  committing  the  grievance  by  them  thereinafter 
next  mentioned,  were,  and  still  were  bankers,  and  the  trade  and  busi- 
ness of  bankers  used,  exercised,  and  carried  on,  and  still  used,  etc.,  in 
the  city  of  London,  to  wit,  at,  cVrc.  ;  and,  as  such   bankers,  had  been 


454  CONTRACTS   TO   PAY   MONEY 

used  to  receive  and  take  into  their  charge  moneys,  bills,  notes,  and 
other  securities  of  divers  persons,  customers  of  and  dealing  with  the 
defendants  in  the  way  of  their  trade  and  commerce  in  the  city  of 
London.  That  by  the  usage  and  custom  of  trade  and  commerce  in 
the  city  of  London,  persons  being  bankers,  and  using  the  trade  and 
business  of  bankers  within  the  city  of  London,  and  receiving  into 
their  care  and  custody  the  moneys,  bills,  notes,  and  securities  of  per- 
sons being  the  customers  of  or  dealing  with  such  persons  as  bankers 
as  aforesaid,  in  the  way  of  their  trade  and  business  of  bankers,  and 
having;  in  their  hands  cash  balances  of  such  their  customers  and 
persons  dealing  with  them  as  aforesaid,  and  not  having  lent  or 
advanced  money  to  discount  any  bills  or  bill,  notes  or  note  or  other 
negotiable  securities,  or  made  any  advances,  or  incurred,  or  entered 
into  any  engagements  or  contracts,  or  incurred  or  subjected  them- 
selves to  any  liabilities  for  or  on  account  of  such  their  customers  or 
persons  dealing  with  them  as  bankers  as  aforesaid,  nor  having  any 
lien  or  claim  on  such  cash  balances,  were  bound,  and  it  had  been  and 
was  their  duty  as  bankers  as  aforesaid,  to  honor  and  pay  the  drafts  or 
checks  of  such  their  customers  and  persons  dealiug  with  them,  duly 
drawn  for  any  part  of  such  cash  balances,  when  duly  presented  to 
such  bankers  for  payment  by  any  person  or  persons  lawfully  entitled 
to  recover  the  money  specified  in  such  drafts  or  checks.  That  long- 
before  and  at  the  time  of  committing  the  grievance  by  the  defendants 
thereinafter  next  mentioned,  plaintiff  was  a  customer  of  and  dealt 
the  defendants  in  the  way  of  their  said  trade  and  business  of  bank- 
ers, and  at  the  time  of  committing  the  grievance,  &c,  had  in  then- 
hands,  as  such  bankers  as  aforesaid,  a  large  cash  balance,  and  much 
more  than  sufficient  to  pay  and  discharge  the  money  specified  in  the 
draft  or  order  thereinafter  next  mentioned,  to  wit,  a  cash  balance  of 
1091.  19s.  6d.,  and  defendants  had  not  lent  or  advanced  to  the  plaint- 
iff any  money,  nor  discounted  any  bills  or  bill,  notes  or  note,  or  other 
negotiable  securities  for,  nor  made  any  advances,  nor  entered  into  any 
engagements  or  contracts,  or  incurred  or  subjected  themselves  to  any 
liabilities  for  or  on  account  of  the  plaintiff,  who  was  so  a  customer  of 
and  dealt  with  them  as  bankers  as  aforesaid,  nor  had  they,  or  any  of 
them,  any  lien  or  claim  on  the  said  cash  balance  of  the  plaintiff  so 
being  in  their  hands  as  aforesaid.  That  whilst  such  cash  balance  was 
in  the  hands  of  the  defendants  as  his  bankers  as  aforesaid,  to  wit,  on  the 
18th  of  December,  1828,  to  wit,  at  London  aforesaid ;  the  plaintiff, 
according  to  the  usage  and  custom  of  merchants,  made  and  drew  his 
certain  draft  or  order  in  writing  for  the  payment  of  money  commonly 
called  a  check  on  a  banker,  bearing  date  the  day  and  year  last  afore- 
said, and  then    and  there   directed   the  said  draft  or  order  to  the 


MARZETTI   v.   WILLIAMS.  455 

defendants,  and  thereby  required  them  to  pay  to  certain  persons  by 
the  names,  style,  &c,  of  Sampson  &  Hooper,  or  bearer,  871.  7s.  6d. : 
the  said  sum  of  871.  7s.  6d.  specified  in  the  said  draft  or  order  being 
a  less  sum  than  the  said  cash  balance  of  the  plaintiff,  so  being  in  the 
hands  of  defendants  as  his  bankers  as  aforesaid,  and  then  and  there 
delivered  the  said  draft  or  order  to  the  said  Sampson  &  Hooper,  who 
thereby  then  and  there  became,  and  were  the  bearers  thereof,  and  from 
thence  until,  and  at  the  time  of  the  presentment  and  refusal  thereinafter 
next  mentioned,  were  lawfully  entitled  to  the  money  therein  speci- 
fied. That  afterwards,  and  whilst  such  cash  balance  of  plaintiff,  and 
which  so  exceeded  the  said  sum  of  871.  7s.  6d.  in  the  said  draft  or 
order  mentioned,  was  in  the  hands  of  the  defendants  as  his  bankers 
as  aforesaid,  to  wit,  on,  &c,  at,  &c,  the  said  draft,  &c,  was  duly  pre- 
sented for  payment.  Yet  the  defendants,  not  regarding  their  duty  as 
such  bankers  as  aforesaid,  nor  such  usage  and  custom  of  trade  as  afore- 
said, but  contriving,  &c,  to  injure  the  plaintiff  in  his  credit  and  charac- 
ter as  a  trader,  to  cause  it  to  be  believed  that  he  had  drawn  a  draft  or 
order  upon  them  without  having  effects  in  their  hands  to  pay  and  an- 
swer the  same,  tfcc,  did  not,  nor  would,  when  the  said  draft  or  order 
was  so  shown  and  presented  to  them  for  payment  as  aforesaid,  honor 
the  said  draft  or  order,  or  pay  to  the  said  Sampson  &  Hooper,  or  either 
of  them,  the  said  sum  of  871.  7s.  6d.  therein  specified,  but  wholly 
refused  so  to  do.  The  second  count  stated  that  the  defendants  were 
the  plaintiff's  bankers,  and  as  such  had  been  used  to  pay  his  checks  ; 
and  that  at  the  time,  &c,  they,  having  sufficient  money  of  his  in  their 
hands,  and  no  lien  or  other  lawful  cause  of  refusal,  did  refuse  to  pay, 
&c,  coutrary  to  their  duty  as  such  bankers,  and  maliciously  intending 
to  injure  the  plaintiff.  The  third  count  stated  the  facts  still  more 
concisely,  and  there  was  a  general  averment  of  damage  to  the  plaint- 
iff's circumstances  and  credit.  A  count  was  added  in  trover  for  bank 
notes  and  pieces  of  money.     Plea,  not  guilty. 

At  the  trial  before  Parke,  J.,  at  the  London  sittings  after 
Michaelmas  term  1829,  it  appeared  that  the  plaintiff  was  a  wine 
merchant  and  ship  broker,  that  the  defendants  were  bankers  in 
London,  and  that  the  plaintiff  kept  a  banking  account  with  them. 
The  amount  of  the  balance  due  from  the  defendants  to  the  plaintiff, 
on  the  evening  of  the  17th  of  December,  1828,  was  691.  19s.  6d.  A 
few  minutes  before  11  o'clock  on  the  morning  of  the  19th,  a  further 
sum  of  10/.,  being  a  Bank  of  England  note,  was  paid  in  to  his  ac- 
count. On  the  same  day,  about  ten  minutes  before  three  o'clock,  a 
check  drawn  by  the  plaintiff  in  favor  of  Messrs.  Sampson  &  Hooper, 
for  871.  7s.  6d.,  was  presented  at  the  banking  house  of  the  defend- 
ants for  payment.     The  clerk,  to  whom  it  was  presented,  after  having 


456  CONTRACTS   TO   PAY   MONEY. 

referred  to  a  book,  said  there  were  not  sufficient  assets,  but  that  the 
check  might  probably  go  through  the  clearing  house.     The  check  was 
paid  on  the  following  day.     Upon  this  evidence  it  was  contended  by 
the  Attorney  General,  first,  that  the  plaintiff,  having  declared  in  tort 
as  for  a  breach  of  duty,  must  be  nonsuited,  inasmuch  as  he  had  not 
proved  any  damage.    Secondly,  that  a  banker  was  not  bound  to  know 
that  a  particular  sum  had  been  paid  in  an  hour  or  half  an  hour  before 
the  check  of  his  customer  was  drawn.     He  must  be  allowed  a  reason- 
able time  to  ascertain  the  state  of  the  account  between  him  and  them, 
and  it  was  not  to  be  supposed  he  could  know  without  special  notice 
that  a  sum  paid  in  by  a  customer,  was  to  be  drawn  out  an  hour  or  two 
afterwards,  the  state  of  the  account,  in  point  of  practice,  being  gen- 
erally ascertained  at  the  close  of  each  day  when  the  books  were  made 
up,  it  could  only  be  expected  that  the  clerk  should  look  at  the  book  at 
the  time  when  the  check  was  presented,  and  give  an  answer  according 
to  the  state  of  the  account  as  it  then  appeared.    The  learned  judge 
was  of  opinion,  that  a  banker  who  received  a  sum  of  money  belong- 
ing to  his  customer,  became  his  debtor  the  moment  he  received  it,  and 
was  bound  to  pay  a  check  drawn  by  such  customer  after  the  lapse  of 
such  a  reasonable  time  as  would  afford  an  opportunity  to  the  different 
persons  in  his  establishment  of  knowing  the  fact  of  the  receipt  of 
such  money,  and  that  the  refusal  to  pay  a  check  under  such  circum- 
stances was  a  breach  of  duty  for  which  an  action  would  lie  ;  and  he 
directed  the  jury  to  find  for  the  plaintiff,  if  they  were  of  opinion 
that  such  a  reasonable  time  had  intervened  between  the  receipt  of  the 
money  at  eleven  o'clock  and  the  presentment  of  the  check  at  three, 
observing  also,  that  it  could  not  be  expected  if  a  sum  of  money  was 
paid  to  a  clerk  in  a  large  banking  office,  and  immediately  afterwards 
a  check  presented  to  another  clerk  in  a  different  part  of  the  office,  that 
the  clerk  to  whom  the  check  was  presented,  should  be  immediately 
acquainted  with  the  fact  of  the  cash  having  been  paid  in,  but  a  rea- 
sonable time  must  be  allowed  for  that  purpose,  and  he  told  the  jury, 
that  in  forming  their  judgment,  whether  such  a  reasonable  time  had 
elapsed,  they  must  consider  whether  the  defendants  ought  or  ought 
not,  between  eleven  and  three  o'clock,  to  have  had  in  some  book,  an 
entry  of  the  40Z.  having  been  paid  in,  which  would  have  informed  all 
their  clerks  of  the  state  of  the  account.     The  jury  having  found  for 
the  plaintiff  on  the  first  three  counts,  the  attorney  general  asked 
whether  they   found    that    the   defendant   acted   maliciously.     The 
learned  judge  said,  there  was  no  evidence  of  malice  in  fact;    and  if 
malice  was  a  question  for  the  jury,  they  must  be  taken  to  have  nega- 
tived malice.     A  rule  nisi  for  a  new  trial  was  obtained. 


MARZETTI  v.   WILLIAMS.  457 

The  motion  thereon  having  been  argued,  the  following  opinions- 
were  delivered  : 

Lord  Tenterden,  C.  J. — I  think  that  the  plaintiff  is  entitled  to 
have  a  verdict  for  nominal  damages,  although  he  did  not  prove  any 
actual  damage  at  the  trial.  I  cannot  think  there  can  be  any  differ- 
ence, as  to  the  consequences  resulting  from  a  breach  of  contract  by 
reason  of  that  contract  being  either  express  or  implied.  The  only 
difference  between  an  express  and  an  implied  contract,  is  in  the  mode 
of  substantiating  it.  An  express  contract  is  proved  by  an  actual 
agreement ;  an  implied  contract  by  circumstances,  and  the  general 
course  of  dealing  between  the  parties ;  but  whenever  a  contract  is 
once  proved,  the  consequences  resulting  from  the  breach  of  it  must  be 
the  same,  whether  it  be  proved  by  direct  or  circumstantial  evidence. 
The  attorney  general  was  compelled  to  admit,  in  this  case,  that  if  the 
action  were  founded  on  an  express  contract,  the  plaintiff  would  have 
been  entitled  to  recover  nominal  damages,  although  no  actual  damage 
were  proved.  JSTow  this  action  is,  in  fact,  founded  on  a  contract,  for 
the  banker  does  contract  with  his  customer  that  he  will  pay  checks 
drawn  by  him,  provided  he,  the  banker,  has  money  in  his  hands 
belonging  to  that  customer.  Here  that  contract  was  broken,  for  the 
defendants  would  not  pay  the  check  of  the  plaintiff,  although  they 
had  in  their  hands  money  belonging  to  him,  and  had  had  a  reasonable 
time  to  know  that  such  was  the  fact.  In  this  case  a  plaintiff  might, 
for  the  breach  of  that  contract,  have  declared  in  assumpsit.  So  in 
Burnett  v.  Lynch  (5  B.  &  C.  589),  the  plaintiff  might  have  declared  as 
for  breach  of  a  contract.  It  is  immaterial  in  such  a  case  whether  the 
action  in  form  be  in  tort  or  in  assumpsit.  It  is  substantially  founded 
on  a  contract ;  and  the  plaintiff,  though  he  may  not  have  sustained  a 
damage  in  fact,  is  entitled  to  recover  nominal  damages.  At  the  same 
time  I  cannot  forbear  to  observe,  that  it  is  a  discredit  to  a  person,  and 
therefore  injurious  in  fact,  to  have  a  draft  refused  payment  for  so 
small  a  sum,  for  it  shows  that  the  banker  had  very  little  confidence  in 
the  customer.  It  is  an  act  particularly  calculated  to  be  injurious  to  a 
person  in  trade.  My  judgment  in  this  case,  however,  proceeds  on  the 
ground  that  the  action  is  founded  on  a  contract  between  the  plaintiff 
and  the  bankers,  that  the  latter,  whenever  they  should  have  money  in 
their  hands  belonging  to  the  plaintiff,  or  within  a  reasonable  time 
after  they  should  have  received  such  money,  would  pay  his  checks  ; 
and  there  having  been  a  breach  of  such  contract,  the  plaintiff  is  enti- 
tled to  recover  nominal  damages. 

Parke,  J. —  I  am  of  the  same  opinion.  This  action  being  sub- 
stantially founded  on  a  contract,  I   think   it   can   make  no  difference 


458  CONTRACTS  TO   PAY   MONEY. 

whether  it  is  in  form  tort  or  assumpsit.  There  is  no  authority  for 
any  such  distinction.  This  case,  therefore,  must  be  considered  as  if 
the  action  were  founded  on  a  contract  by  the  bankers,  to  pay  all 
drafts  presented  within  a  reasonable  time  after  they  receive  such 
money,  so  as  to  allow  them  to  pass  it  to  their  customer's  account.  It 
is  admitted  that,  where  there  is  a  breach  of  an  express  contract,  nom- 
inal damages  may  be  recovered.  The  only  difference,  however, 
between  an  express  and  an  implied  contract,  is  as  to  the  mode  of 
proof.  An  express  contract  is  proved  by  direct  evidence,  an  implied 
contract  by  circumstantial  evidence,  Whether  the  contract  be  proved 
by  evidence  direct  or  circumstantial,  the  legal  consequences  resulting 
from  the  breach  of  it  must  be  the  same  ;  one  is,  that  wherever  there 
is  a  breach  of  contract  or  any  injury  to  the  right  arising  out  of  that 
contract,  nominal  damages  are  recoverable.  An  extreme  case  may  be 
put,  where  a  party,  who  had  sustained  no  inconvenience,  might  bring 
an  action ;  but  the  remedy,  in  that  case,  would  be  to  deprive  such 
party  of  costs. 

Taunton,  J. — The  defendants  were  guilty  of  a  breach  of  duty, 
which  duty  the  plaintiff  at  the  time  had  a  right  to  have  performed. 
The  jury  have  found  that  when  the  check  was  presented  for  pay- 
ment, a  reasonable  time  had  elapsed  to  have  enabled  the  defend- 
ants to  enter  the  4:01.  to  the  credit  of  the  plaintiff,  and,  therefore, 
that  they  must  or  ought  to  have  known  that  they  had  funds  be- 
longing to  him.  That  was  sufficient  to  entitle  the  plaintiff  to  re- 
cover nominal  damages,  for  he  had  a  right  to  have  his  check  paid  at 
the  time  when  it  was  presented,  and  the  defendants  were  guilty  of  a 
wrong  by  refusing  to  pay  it.  The  form  of  the  declaration,  whether 
it  be  in  tort  or  assumpsit,  makes  no  substantial  difference,  nor  can  it 
be  any  real  ground  of  distinction  whether  the  foundation  of  the 
action  be  an  express  or  an  implied  assumpsit.  There  are  many 
instances  where  a  wrong,  by  which  the  right  of  a  party  may  be 
injured,  is  a  good  cause  of  action  although  no  actual  damage  may  be 
sustained.  Trespass,  quare  clausiim  f regit,  is  maintainable  for  an 
entry  on  the  land  of  another,  though  there  be  no  real  damage,  because 
repeated  acts  of  going  over  the  land  might  be  used  as  evidence  of  a 
title  to  do  so,  and  thereby  the  right  of  the  plaintiff  might  be  injured. 
So  an  action  may  be  maintained  by  a  commoner  for  an  injury  done  to 
his  common,  without  proving  actual  damage.*  In  Wells  v.  Watling 
(2  Sir  W.  Black.  1233),  which  was  an  action  by  a  commoner  for  sur- 
charging the  common,  the  evidence  was,  that  the  defendant,  in  the 

*  See  note  to  Mellor  v.  Spateman,  1  Saund.  415,  and  Young  v.  Spencer,  10  B.  &  C. 
145. 


MAfcZETTI  v.   WILLIAMS.  459 

year  1777,  turned  on  a  greater  number  of  sheep  than  he  ought. 
There  was  no  evidence  that  the  plaintiff  had  turned  on  any  sheep  in 
that  year.  It  was  objected  that  the  action  was  not  maintainable, 
because  the  plaintiff,  not  having  used  the  common  during  the  period 
of  the  defendant's  misfeasance,  could  not  by  possibility  have  sustained 
any  damage.  But  it  was  held  that  the  action  was  maintainable  ;  Lord 
C.  J.  De  Grey  said,  that  it  was  sufficient  if  the  right  be  injured, 
whether  it  be  exercised  or  not ;  and  Nakes,  J.,  observed,  that  in  the 
case  of  the  dippers  at  Tunbridge  Wells  (2  Wils.  414),  it  was  held  that 
a  probable  damage  was  a  sufficient  injury  on  which  to  ground  an 
action.  Here,  independently  of  other  considerations,  the  credit  of 
the  plaintiff  was  likely  to  be  injured  by  the  refusal  of  the  defend- 
ants to  pay  the  check  ;  and  as  it  was  the  duty  of  the  defendants  to 
pay  the  check  when  it  was  presented,  and  that  duty  was  not  per- 
formed, I  think  the  plaintiff",  who  had  a  right  to  its  being  performed, 
is  entitled  to  recover  nominal  damages.  The  case  put  in  argument, 
of  the  holder  of  a  check  being  refused  payment,  and  called  back 
within  a  few  minutes  and  paid,  is  an  extreme  case,  and  a  jury  prob- 
ably would  consider  that  as  equivalent  to  instant  payment.  That, 
however,  is  not  the  present  case.  Here  the  refusal  to  pay  was  not 
countermanded  till  the  following  day.* 

Patteson,  J. — I  think  the  verdict  was  right.  The  action  is  in 
form  founded  in  tort,  but  is  in  substance  founded  on  a  contract.  The 
relation  in  which  the  parties  stood  to  each  other,  viz.  that  of  banker 
and  customer,  was  created  by  their  own  contract,  not  by  the  general 
operation  of  law.  Green  -'v.  Greenbank  (2  Marsh.  485),  shows  that 
the  circumstance  of  the  action  being  in  form  for  a  tort  is  immaterial. 
if  the  substantial  ground  of  it  be  a  contract.  This  action,  therefore, 
lies,  if  the  plaintiff  could  have  brought  assumpsit,  and  as  it  is  quite 
clear  that  he  could  have  maintained  assumpsit  for  the  breach  of  con- 
tract, he  may  on  the  same  ground  maintain  this  action  of  tort,  unless 
there  be  some  distinction  in  this  respect  between  an  express  and  an 
implied  contract.  But  the  only  distinction  between  the  two  species 
of  contracts  is  as  to  the  mode  of  proof.  The  one  is  proved  by  the 
express  words  used  by  the  parties,  the  other  by  circumstances  show- 
ing that  the  parties  intended  to  contract.  As  soon  as  it  is  made  out, 
either  by  direct  or  circumstantial  evidence,  that  there  was  such  a  con- 
tract, either  of  the  parties  may  maintain  an  action  against  the  other 
without  showing  any  actual  damage.  The  rule  for  entering  a  nonsuit 
must  therefore  be  discharged.  Rule  discharged. 

*  An  action  on  the  case  will  lie  for  the  possibility  of  a  damage  and  injury  ;  as  for 
persuading  A.  not  to  come  and  sell  his  wares  at  the  market  of  B.,  the  lord  of  the  market 
may  have  this  action.     Per  Curiam  in  Weller  v.  Baker,  2  Wils.  422. 


460  CONTRACTS   TO   PAY   iftONEY. 


THE    COUKT   OF    COMMON    PLEAS. 

[1854.]  Eolin  v.  Steward  (14  0.  B.  595). 

Substantial  damages  recoverable  against  banker  for  dishonoring  checks,  he  having  funds 
to  meet  them. 

This  was  an  action  against  bankers,  at  the  suit  of  a  customer,  for 
dishonoring  a  bill  and  certain  checks,  at  a  time  when  they  had  in  their 
hands  sufficient  assets  of  his  to  meet  them. 

The  cause  was  tried  before  Lord  Campbell,  C.  J.,  at  the  Assizes 
at  Norwich.  The  facts  which  appeared  in  evidence  were  as  follows  : 
The  plaintiffs  were  merchants  and  shipowners  carrying  on  business  at 
Lynn,  in  the  county  of  Norfolk.  The  defendant  was  the  registered 
public  officer  of  the  East  of  England  Bank,  who  had  a  branch  at 
Lynn,  of  which  one  Wilson  was  the  manager.  The  plaintiffs  were 
customers  at  this  branch.  The  state  of  the  account  between  the 
plaintiffs  and  the  bank,  at  the  time  of  the  transaction  complained  of, 
as  appeared  by  the  pass-book,  which  was  made  up  to  the  4th  of  Feb- 
ruary, 1854,  was  as  follows  :  On  the  debit  side,  the  total  amount  was 
9,388£.  10s.  Id.;  on  the  credit  side,  9,864?.  16s.  9d. — leaving  a  balance 
in  the  plaintiffs'  favor  of  476?.  6s.  Id. 

This  balance  was  arrived  at  in  part  by  the  note  for  900?.,  which 
was  entered  "  in  full "  in  the  pass-book,  but  which  the  manager  (who 
was  called  as  a  witness  on  the  part  of  the  defendant)  said  the  bank 
had  not  agreed  to  treat  as  cash.  Upon  this  point,  however,  the  jury 
found  that  the  agreement  was  that  the  900?.  should  be  treated  as  an 
immediate  available  credit  in  the  plaintiffs'  favor. 

It  was  further  proved,  on  the  part  of  the  defendant,  that,  when  the 
pass-book  was  returned  to  the  plaintiffs,  on  the  4th  of  February,  they 
were  informed  by  the  manager  that  they  must  arrange  with  the  bank, 
if  they  desired  any  more  checks  to  be  paid ;  that,  on  the  same  day, 
they  wrote  to  the  manager  a  letter  of  remonstrance,  and  afterwards,  on 
the  6th  and  7th,  drew  upon  the  banks  three  checks,  to  the  amount  of 
111?.  13s.,  which  were  presented  on  the  9th,  and  dishonored.  And, 
on  the  6th,  the  bank  had  notice  that  the  plaintiffs'  acceptance  in  favor 
of  Gray,  for  48?.,  payable  at  the  London  and  Westminster  Bank,  would 
become  due  on  the  13th.  The  action  was  brought  for  the  non-payment 
of  these  three  checks  and  the  bill,  the  writ  being  issued  on  the  13th 
of  February. 

There  was  no  evidence  given  that  the  plaintiffs  had  sustained  any 
special  damage. 


ROLIN   v.    STEWARD.  461 

His  Lordship,  in  leaving  the  case  to  the  jury,  told  them  that  they 
ought  not  to  limit  their  verdict  to  nominal  damages,  but  should  give 
the  plaintiffs  such  temperate  damages  as  they  should  judge  to  be  a 
reasonable  compensation  for  the  injury  they  must  have  sustained  from 
the  dishonor  of  their  checks. 

The  jury  returned  a  verdict  for  the  plaintiffs,  damages  5001. 

It  was  objected  on  the  part  of  the  defendant  that,  inasmuch  as 
the  dishonor  of  the  bill  and  the  issuing  of  the  writ  took  place  on  the 
same  day,  it  was  incumbent  on  the  plaintiffs  to  show  which  was  prior 
in  point  of  time.  The  Lord  Chief  Justice,  however,  overruled  the 
objection,  observing  that  there  was  no  plea  to  raise  it. 

A  rule  nisi  for  a  new  trial  on  the  ground  of  misdirection,  and  also 
on  the  ground  that  the  damages  were  excessive,  having  been  ob- 
tained, and  argument  had  thereon,  the  following  opinions  were 
delivered  : 

Cresswell,  J.* — I  am  of  opinion  that,  as  far  as  the  application 
in  this  case  depends  upon  the  ground  of  misdirection,  the  rule  must 
be  discharged.  It  appears  to  me  that  the  direction  of  my  Lord 
Campbell  was  perfectly  right.  He  told  the  jury  that  they  ought  to 
give,  not  nominal,  nor  excessive,  but  reasonable  and  temperate  dam- 
ages. I  think  the  case  of  Marzetti  v.  Williams  goes  the  full  length 
of  justifying  that  direction.  The  declaration  in  that  case  was  sub- 
stantially the  same  as  the  declaration  here.  It  appeared  at  the  trial 
that  the  bankers,  at  the  time  the  plaintiff's  check  was  presented  and 
dishonored,  had  ample  funds  of  the  plaintiff's  in  their  hands  to  meet 
it,  and  that  the  non-payment  arose  from  some  inadvertence  of  their 
clerk ;  and  that  the  check  was  again  presented  on  the  following  morn- 
ing, and  paid.  The  report  does  not  show  what  the  direction  to  the 
jury  was  on  the  subject  of  damages ;  but  it  seems  to  have  been  taken 
for  granted  that  the  plaintiff  had  sustained  no  actual  damage.  On 
the  argument  of  the  rule  for  a  new  trial,  the  counsel  for  the  defend- 
ants contended  that  the  action  was  in  tort,  and  therefore  not  sustain- 
able without  showing  actual  damage.  Lord  Tenterdkn,  in  giving 
judgment — after  stating  that  the  action  was  in  reality  founded  on 
contract — says  :  "  In  this  case  a  plaintiff  might,  for  the  breach  of  that 
contract,  have  declared  in  assumpsit.  So,  in  Burnett  v.  Lynch  (5  B. 
&  C.  589  [E.  C.  L.  E.  vol.  11] ;  8  D.  &  E.  368  [E.  C.  L.  E.  vol.  16]), 
the  plaintiff  might  have  declared  as  for  a  breach  of  a  contract.  It  is 
immaterial  in  such  a  case  whether  the  action  in  form  be  in  tort  or  in 
assumpsit.     It  is  substantially  founded  on  a  contract ;  and  the  plaint- 

*  Jervis,  C.  J.,  was  absent. 


462  CONTRACTS  TO  PAY   MONET. 

iff,  though  he  may  not  have  sustained  a  damage  in  fact,  is  entitled  to 
recover  nominal  damages."  His  Lordship  is  there  combating  the  ar- 
gument that  tort  could  not  be  maintained  without  some  proof  of 
actual  damage.  "  At  the  same  time,"  he  continues,  "  I  cannot  for- 
bear to  observe  that  it  is  a  discredit  to  a  person,  and  therefore  inju- 
rious in  fact  to  have  a  draft  refused  payment  for  so  small  a  sum  ;  for 
it  shows  that  the  banker  had  very  little  confidence  in  the  customer. 
It  is  an  act  particularly  calculated  to  be  injurious  to  a  person  in 
trade."  His  lordship  therefore  assumes,  as  a  thing  not  to  be  dis- 
puted, that  a  breach  of  contract  of  this  sort  must  of  necessity  be 
injurious  to  a  person  in  trade ;  and,  if  so,  the  jury  might  properly 
take  that  into  consideration,  and  give  damages  accordingly.  And 
Taunton,  J.,  in  his  judgment,  after  referring  to  one  or  two  cases, 
says :  "Here,  independently  of  other  considerations,  the  credit  of  the 
plaintiff  was  likely  to  be  injured  by  the  refusal  of  the  defendants  to 
pay  the  check  ;  and  as  it  was  the  duty  of  the  defendants  to  pay  the 
check  when  it  was  presented,  and  that  duty  was  not  performed,  I 
think  the  plaintiff,  who  had  a  right  to  its  being  performed,  is  enti- 
tled to  recover  nominal  damages."  Why  ?  Because  the  jury  had  a 
right  to  assume  that  it  would  be  to  some  extent  injurious ;  and,  if  so, 
it  was  for  them  to  say  to  what  extent.  For  these  reasons,  I  am  of 
opinion  that  the  direction  of  Lord  Campbell  to  the  jury  was  right. 

As  to  the  amount  of  damages — that  is  a  question  which  it  is  always 
extremely  difficult  for  the  court  to  deal  with.  But  inasmuch  as  we 
are  disposed  to  think  that  the  jury  have,  under  the  circumstances, 
awarded  the  plaintiff  a  very  large  sum,  the  counsel  may  possibly  re- 
lieve us  from  giving  any  ultimate  opinion  as  to  the  extent  to  which 
the  verdict  ought  to  be  reduced.  That  part  of  the  rule,  therefore, 
may  remain  open  for  the  present. 

Williams,  J. — I  am  entirely  of  the  same  opinion.  As  to  the  al- 
leged misdirection,  I  think  it  cannot  be  denied  that,  if  one  who  is 
not  a  trader  were  to  bring  an  action  against  a  banker  for  dishonor- 
ing a  check,  at  a  time  when  he  had  funds  of  the  customer's  in  his 
hands  sufficient  to  meet  it,  and  special  damage  were  alleged  and 
proved,  the  plaintiff  would  be  entitled  to  recover  substantial  damages. 
And  when  it  is  alleged  and  proved  that  the  plaintiff  is  a  trader,  I  think 
it  is  equally  clear  that  the  jury,  in  estimating  the  damages,  may  take 
into  their  consideration  the  natural  and  necessary  consequences  which 
must  result  to  the  plaintiff  from  the  defendant's  breach  of  contract ; 
just  as  in  the  case  of  an  action  for  a  slander  of  a  person  in  the  way  of 
his  trade,  or  in  the  case  of  an  imputation  of  insolvency  on  a  trader, 
the  action  lies  without  proof   of   special   damage.     I  think,  there- 


BOYD   v.   FITT.  463 

fore,  the  direction  was  right.  I  also  agree  with  my  brother  Cress- 
well  in  thinking  that  the  amount  of  the  damages  requires  further 
consideration. 

Crowdee,  J. — I  am  of  the  same  opinion.  The  Lord  Chief  Justice 
was  not  bound  to  tell  the  jury  that  they  must  limit  their  verdict  to 
nominal  damages.  I  think  this  was  peculiarly  a  case  in  which  the 
jury  were  called  upon  to  exercise  their  judgment  as  to  the  amount  of 
injury  the  plaintiffs  were  likely  to  sustain  from  the  conduct  imputed 
to  the  bankers.  But,  at  the  same  time,  I  cannot  help  feeling  that  the 
sum  at  which  they  have  estimated  it  was  very  high,  and  that  the  case 
in  that  respect  required  reconsideration. 

The  parties  ultimately  agreed  that  the  verdict  should  be  reduced 
to  200?. 

Rule  accordingly. 


Consequential  Damages  for  Dishonoring  Money  Order. 


IRISH    COURT   OF    EXCHEQUER. 

[1863.]      Boyd  v.  Fitt  (14  Irish  Coin.  Law,  K.  S.  43). 

The  defendant,  under  an  agreement  in  writing,  undertook  to  act  as  agent  in  Glasgow,  for 
the  plaintiffs,  cattle  and  provision  dealers  in  Dublin  ;  part  of  the  agreement  was, 
that  the  defendant  should  open  a  cash  account  at  a  bank  in  Glasgow,  to  the  amount  of 
500/.,  to  be  used  at  any  time  in  honoring  and  retiring  cash  orders  of  the  plaintiffs. 
It  was  also  agreed  that  no  cash  order  would  be  drawn  by  the  plaintiffs  "  without  the 
defendant  having  in  his  hands  the  full  amount  of  such  orders  previous  to  his  being 
required  to  pay  the  same." 

While  the  defendant  had  cash  in  bank,  and  goods  in  hands,  amounting  to  more  than 
the  500/.,  upon  the  day  on  which  a  cash  order  for  250/.  fell  due  in  Glasgow,  the  de- 
fendant left  that  city,  and  the  order  was  returned  dishonored  to  Dublin.  It  having 
been  proved  that,  in  consequence  of  the  cash  order  having  been  dishonored,  the 
plaintiffs'  trade  in  Glasgow  was  suspended,  that  their  Dublin  business  was  seriously 
impaired,  and  that  they  had  lost  the  agency  of  an  Australian  firm ;  the  jury  gave 
damages  for  loss  upon  each  of  those  heads. — Held,  that  no  portion  of  the  damages 
was  too  remote,  as  the  losses  flowed  naturally  from  the  default  of  the  defendant. 

Simble — That  the  rule  laid  down  in  Hadley  v.  Baxendale  (9  Exch.  341)  is  too  strict,  and 
thatSmeed  v.  Foord  (1  Ell.  &  Ell.  614),  and  Gee  v.  The  Lancashire  <fe  Yorkshire  Rail- 
way Company  (6  Hurl.  &  Nor.  221),  contain  sounder  expositions  of  the  law  as  to 
the  proximateness  or  remoteness  of  damage. 

This  was  an  action,  brought  by  the  plaintiffs  against  the  defend- 
ant, for  damages  alleged  to  have  accrued  to  them,  by  reason  of  the 
defendant's  violation  of  his  duty  as  agent  to  the  plaintiffs.     By  an 


464  CONTRACTS   TO   PAY   MONEY. 

agreement  in  writing  between  the  parties  the  defendant  undertook 
to  act  as  agent  in  Glasgow  for  the  plaintiffs,  who  were  provision 
agents  and  cattle  salesmen  in  Dublin,  for  a  commission,  which  was 
guaranteed  to  amount  to  250/.  per  annum :  either  party  to  be  at 
liberty  to  revoke  the  agreement  by  giving  three  months'  notice. 
The  agreement  contained  the  following  proviso  :  "  That  the  said  Wil- 
liam Fitt  do  procure  the  sum  of  500/.,  or  obtain  a  cash  credit  to  that 
extent  at  a  Glasgow  bank ;  and  that  he  do  open  a  bank  account,  in 
his  own  name,  with  this  capital,  to  be  used,  at  any  time  that  it  may 
be  necessary,  in  honoring  and  retiring  the  cash  orders  of  George  "W". 
Boyd  &  Co.  The  said  G.  W.  Boyd  &  Co.  agreeing  hereby  that  in 
no  instance  or  occasion  whatever  will  they  pass  any  cash  order  on 
said  W.  Fitt  without  the  said  ~YV~.  Fitt  having  the  full  amount  of 
such  orders  in  his  hands,  either  in  cash  or  goods,  previous  to  his  be- 
ing required  to  pay  same." 

The  summons  and  plaint  then  averred  that,  while  the  defendant 
had  in  his  hands,  on  the  1st  of  February,  1862,  350/.  cash,  and  cattle 
and  goods  to  the  amount  of  675/.,  belonging  to  the  plaintiffs,  he 
abandoned  his  duty,  and  absconded  from  Glasgow,  and  did  not  pay 
cash  orders  drawn  by  the  plaintiffs  to  the  amount  of  600/.,  and  pay- 
able on  the  1st,  3d  and  4th  of  February. 

The  cash  orders  were  returned  dishonored  to,  it  was  averred,  the 
special  damage  of  the  plaintiffs,  whose  credit  and  business  were 
thereby  injured.  The  defendants,  by  consent,  pleaded  the  general 
issue.  The  evidence  is  stated  at  length  in  the  judgment  of  the 
Lord  Chief  Baron,  who,  at  the  trial,  allowed  the  names  of  certain 
persons  who  had  withdrawn  their  business  from  the  plaintiffs,  in 
consequence  of  their  bills  having  been  dishonored,  to  be  introduced 
into  the  summons  and  plaint,  in  addition  to  those  therein  men- 
tioned. The  case  was  tried  before  the  Lord  Chief  Baron,  at  the 
sittings  after  Trinity  Term,  1862,  when  the  jury,  under  his  Lord- 
ship's direction,  divided  their  verdict  into  the  three  different  heads 
of  damage  alleged  to  have  been  suffered  by  the  plaintiffs,  and  found 
110/.  for  damage  resulting  to  the  Glasgow  business,  viz.,  65/.  loss  on 
sales  of  beef,  and  45/.  loss  on  sales  of  cattle ;  70/.  for  loss  on  general 
agency  ;  and  120/.  for  loss,  in  consequence  of  G.  Martin  having  with- 
drawn his  agency — total  300/. 

A  conditional  order  for  a  new  trial  having  been  obtained  by  the 
defendant,  upon  the  grounds  of  the  damages  being  too  remote,  and 
of  a  wrongful  amendment  having  been  made  at  the  trial — 

/.  T.  Ball  (with  whom  was  D.  C.  Heron)  now  showed  cause. 

The  damages  given  are  not  too  remote.     As  to  the  measure  of 


BOYD   v.   FITT.  465 

damages  in  such  cases  (Smeed  v.  Foord,  1  Ell.  &  Ell.  614 ;  s.  c.  5  Jur. 
K  S.  219 ;  Rigby  v.  Hewitt,  5  Exch.  240,  243  ;  Dunlop  v.  Higgins, 
1  H.  of  Lds.  381 ;  Marsetti  v.  Williams,  1B.&  Ad.  415 ;  Waters  v. 
Towers,  8  Exch.  401 ;  Eandall  v.  Raper,  Ell.  B.  &  Ell.  84). 

J.  E.  Walsh  (with  whom  were  Serjt.  Sullivan  and  J.  O'Uagayi), 
contra. 

The  damages  given  for  the  withdrawal  of  his  business  from  the 
plaintiffs,  by  Martin,  are  too  remote.  Martin's  withdrawal  was  not 
the  natural  consequence  of  the  defendant's  conduct  (Iladley  v.  Bax- 
endale,  9  Exch.  341  ;  Gee  v.  The  Lancashire  &  Yorkshire  Railway 
Company,  6  Hurl.  &  Nor.  211 ;  Wilson  v.  The  Lancashire  &  York- 
shire Railway  Company,  9  Com.  B.  K  S.  632 ;  s.  c.  3  Law  T.  328 ; 
Hoey  v.  Felton,  11  Com.  B.  K  S.  142 ;  Priestly  v.  Maclean,  2  Fost. 
&  Fin.  288  ;  Archer  v.  Williams,  2  Car.  &  Kir.  26 ;  Lynch  v.  Knight, 
5  Law  T.  N".  S.  291). 

The  Lord  Chief  Baron  delivered  the  judgment  of  the  court. 

This  action  was  brought  to  recover  damages  for  the  breach  of  a 
written  unsealed  agreement,  dated  the  13th  of  December,  1861. 
The  agreement  was  expressed  to  be  made  between  George  W.  Boyd, 
of  No.  19  Eden-quay,  trading  as  George  W.  Boyd  &  Co.,  "provision 
merchants,  cattle  salesmen,"  &c,  and  the  defendant.  It  recited  that 
James  Earl  Leet,  of  49  East  Harvard  street,  Glasgow,  had  been  for 
some  years  past  acting  as  general  agent  at  Glasgow  to  said  George 
W.  Boyd  &  Co.,  for  the  sale  of  beef,  cattle,  butter,  bacon  and  gen- 
eral goods ;  and  that  it  became  desirable  to  remove  said  J.  E.  Leet 
from  such  trust :  and  the  agreement  witnessed  that,  "  for  and  in  con- 
sideration of  the  said  William  Fitt  taking  up  the  position  of  said  J. 
E.  Leet,  the  said  George  W.  Boyd  &  Co.  did  thereby  agree  to  allow 
said  William  Fitt,"  &c.  The  agreement  then  proceeded  to  specify 
the  emoluments  which  Fitt  was  to  receive,  and  to  guarantee,  on  the 
part  of  Boyd  &  Co.,  that  those  emoluments  should  not  be  less  than 
2501.  a  year.  It  contained,  amongst  a  variety  of  provisions,  a  stipu- 
lation on  the  part  of  Fitt  "  to  faithfully  and  honestly  serve  and  work 
for  the  said  "  Boyd  &  Co.  It  contained  a  stipulation  that  the  agree- 
ment should  remain  in  force  for  nine  months,  at  the  end  of  which 
period  either  party  should  be  at  liberty  "  to  revoke "  the  arrange- 
ment, by  giving  three  months'  notice.  It  contained  also  the  follow- 
ing provisions :  "  That  said  AVilliam  Fitt  do  procure  the  sum  of  five 
hundred  pounds,  or  obtain  a  cash  credit  to  that  extent,  at  a  Glasgow 
bank ;  and  that  he  do  open  a  bank  account  in  his  own  name  with 
this  capital,  to  be  used,  at  any  time  that  it  may  be  necessary,  in  hon- 
oring and  retiring  the  cash  orders  of  George  W.  Boyd  &  Co. ;  the  said 
30 


±QQ  CONTRACTS   TO  PAY   MONEY. 

George  W.  Boyd  &  Co.  agreeing  hereby,  that  in  no  instance  or  occasion 
whatever  will  they  pass  any  cash  order  on  said  William  Fitt  without 
the  said  William  Fitt  having  the  full  amount  of  such  orders  in  his 
hands,  either  as  cash  or  goods,  previous  to  his  being  required  to  pay 
same."  The  agreement  also  provided  that  the  defendant  should 
have  full  power  and  authority  to  receive  all  moneys  and  goods  what- 
ever sent  to  Glasgow,  addressed  either  by  or  to  the  said  George  W. 
Boyd  &  Co.,  and  to  use  the  proceeds  of  everything  that  may  come 
to  his  hands,  as  agent,  to  discharge  the  cash  orders  of  the  said  George 
W.  Boyd  &  Co.  The  agreement  provided  for  the  payment  of  a  clerk, 
if  appointed  by  Boyd  &  Co. 

The  evidence  was  very  voluminous ;  but  a  comparatively  small 
part  of  it  only  need  be  referred  to,  for  the  purpose  of  indicating  the 
questions  on  which  we  have  to  decide,  and  of  explaining  our  judg- 
ment. It  appeared  that  the  Glasgow  business  of  the  plaintiffs  (who 
were  the  sale  partners  in  the  firm  of  Boyd  &  Co.)  consisted  chiefly 
of  two  branches — first,  they  forwarded  every  week,  and  sometimes 
twice  in  the  week,  quantities  of  fresh  beef,  to  be  delivered  in  Glas- 
gow, to  purchasers  who  were  engaged  there  in  the  process  of  curing 
beef.  Secondly,  they  forwarded  cattle  to  be  sold  in  the  Glasgow 
market ;  the  beef  (or  provision)  trade  they  conducted  on  their  own 
account ;  the  cattle  business  they  conducted  as  salesmasters  or  com- 
mission agents — sometimes  advancing  money  to  the  owners  of  the 
cattle  which  they  forwarded  for  sale.  In  order  to  keep  themselves 
in  funds,  they  cashed  chiefly  at  the  Royal  Bank,  in  Dublin,  and 
sometimes  with  a  private  individual  there,  cash  orders,  drawn  by 
Boyd  &  Co.,  payable  at  a  Glasgow  bank,  to  be  there  paid  by  their 
agent  with  the  funds  in  his  hands  applicable  for  that  purpose.  Such, 
as  I  collect,  was  the  course  of  dealing  in  the  time  of  their  former 
agent  Leet,  whose  position,  according  to  the  agreement,  was  to  be 
taken  up  by  the  defendant.  The  defendant  began  to  act  on  the  25th 
of  January,  1862,  and  was  on  that  day  introduced  to  several  of  the 
customers  of  the  plaintiffs,  by  the  plaintiff  Boyd,  who  was  then  in 
Glasgow,  and  who  desired  them  thenceforward  to  pay  the  defendant. 
And  the  defendant  was  also  on  that  day  put  into  possession,  by  Boyd, 
of  goods,  consisting  of  beef,  which  Boyd  had  brought  from  Dublin  in 
a  steamer,  to  the  value  of  about  300/.  The  plaintiffs  gave  to  the 
Steam  Packet  Company  an  order,  authorizing  the  delivery  to  the 
defendant  of  the  goods  shipped  by  the  plaintiffs  in  the  company's 
vessels.  In  the  course  of  a  very  few  days,  the  defendant,  from 
causes  to  which  it  is  unnecessary  to  refer  (save  by  stating  that  they 
appeared  in  result  to  be  connected  with  an  apprehension  of  the  risks 


BOYD   v.    FITT.  467 

incurred  in  tlie  dealings)  became  averse  to  continuing  in  the  situa- 
tion ;  and  it  was  arranged  between  Boyd  and  him  that,  as  soon  as 
another  agent  could  be  procured,  he  should  be  permitted  to  retire. 
An  advertisement  was  inserted  in  one  of  the  Glasgow  newspapers, 
with  the  defendant's  privity,  seeking  a  person  to  fill  the  intended 
vacancy,  and  describing  the  required  qualifications.  Under  circum- 
stances, which  it  is  unnecessary  to  detail,  the  defendant  had,  prior  to 
the  1st  of  February,  advanced  sums  of  money  to  pay  money  orders, 
before  a  sufficient  amount  of  money  or  of  goods,  destined  to  secure 
the  amount  of  those  orders,  had  reached  the  defendant.  This  he 
voluntarily  did.  On  the  1st  of  February,  a  sum  of  350?.  was  put 
into  the  defendant's  hands  by  the  plaintiff  Boyd,  which  would  still 
have  left  a  balance  due  of  his  advances.  On  the  morning  of  the 
same  day  a  steamer  from  Dublin  reached  Greenock,  about  half-past 
nine  o'clock,  and  arrived  in  Glasgow  some  time  after  eleven  o'clock, 
bringing  about  300?.  worth  of  beef,  which,  in  pursuance  of  orders 
previously  sent  from  Glasgow,  with  the  defendant's  privity,  to  the 
plaintiffs'  house  in  Dublin,  was  invoiced  to  certain  customers  in 
Glasgow.  In  the  ordinary  course  of  business,  those  goods,  when 
taken  from  the  vessel,  would  be  weighed  and  delivered,  under  the 
defendant's  superintendance,  to  the  customers,  who  would  pay  the 
amount  to  the  defendant.  The  same  vessel  also  brought  cattle  to 
the  value  of  about  300?,  on  which,  in  Dublin,  the  plaintiffs  had 
made  considerable  advances  of  money  to  the  owners.  The  amount 
of  the  beef  alone,  in  addition  to  the  350?.,  would  have  much  more 
than  covered  the  amount  of  the  balance  due  to  the  defendant,  and 
of  the  bill  payable  at  the  Glasgow  bank.  About  ten  o'clock  on  the 
morning  of  the  1st  of  February,  a  clerk  of  the  plaintiffs,  named 
Gawl,  who  had  proceeded  from  Dublin  in  the  steamer,  in  charge  of 
the  goods  and  cattle,  came  to  the  office  of  the  plaintiffs  in  Glasgow, 
where  the  defendant  acted  as  agent,  having  traveled  by  railway 
from  Greenock,  and  having  thus  arrived  at  the  office  before  the 
vessel  reached  the  quay  at  Glasgow.  He  brought  the  invoices  of 
the  beef,  and  placed  them  in  the  office,  where  the  plaintiff  Boyd 
then  was.  The  defendant  soon  after,  before  eleven  o'clock,  came 
into  the  office,  learned  the  arrival  of  the  vessel  at  Greenock,  and 
thereupon  entered  the  invoices  of  the  beef,  and  the  particulars  of 
the  cattle,  in  the  book  which  was  kept  by  him  in  the  office,  and  which 
showed  the  receipt  and  disposal  of  the  goods ;  and  the  Glasgow 
clerk,  named  M'Kay,  employed  in  the  plaintiffs'  office  there,  was 
sent  by  the  plaintiff  Boyd  and  the  defendant  to  the  quay,  where  the 
vessel  was  to  arrive,  "  to  see  about  the  cattle."  The  vessel  arrived 
before  twelve  o'clock. 


4:<o8  CONTRACTS  TO   FAY   MONEY. 

On  Saturday  the  1st  of  February,  a  money  order  for  250/.,  drawn 
by  Boyd  &  Co.,  in  Dublin,  and  payable  at  a  Glasgow  bank,  became 
due.  The  custom  of  the  Glasgow  banks  was  to  close  at  twelve 
o'clock  on  Saturdays.  After  the  arrival  of  Gawl,  and  after  the 
invoices  and  the  cattle  had  been  entered  by  the  defendant  in  the 
books,  and  after  M'Kay  had  been  sent  to  the  quay  to  take  charge 
of  the  cattle,  the  plaintiff  Boyd  handed  the  350/.  (being  part  of  a 
sum  of  4001.  received  by  him  from  Dublin  on  that  morning)  to  the 
defendant,  asking  him  to  pay  the  amount  of  the  money  order  for 
250/.  The  defendant  took  the  money — took  the  notice  from  the 
bank,  which  had  been  left  at  the  office,  intimating  that  the  bank 
held  the  order  payable  on  that  day ;  and  left  the  office,  saying  that 
he  would  be  back  in  about  ten  minutes.  Instead  of  returning,  he 
left  Glasgow,  without  having  paid  the  order ;  and  the  plaintiff  first 
learned  where  he  had  gone  by  a  telegram  from  Stirling,  intimating 
that  the  defendant  could  no  longer  remain.  The  intimation  con- 
veyed nothing  to  attach  on  the  defendant  an  imputation  of  dis- 
honesty ;  and  the  whole  evidence  seemed  to  show  that  the  defendant 
yielded  to  timidity,  and  to  an  apprehension  of  the  consequences  of 
making  advances  in  the  course  of  business  carried  on  between  Dublin 
and  Glasgow.  The  defendant  afterwards  went  to  Liverpool,  on  his 
way  to  Ireland ;  but,  on  reflection,  he  repented  of  what  he  had  done, 
and  returned  to  Glasgow.  He  endeavored  to  repair  the  conse- 
quences of  his  conduct  by  an  effort,  subsequently,  to  pay  the  money 
order;  but  he  had  sent  to  his  brother  in  Ireland  the  means  by 
which  he  was  enabled  to  keep  and  apply  the  cash  credit ;  and  ulti- 
mately he  left  Glasgow.  The  result  was,  that  the  money  order  was 
sent  back  to  Dublin  as  dishonored  ;  that  the  business  of  the  plaintiffs 
in  Glasgow  was  suspended;  that  the  Royal  Bank  withdrew  the 
accommodation  which  they  had  been  previously  in  the  habit  of 
making  to  the  plaintiffs,  to  the  extent  of  1,000/.  in  a  week ;  and, 
according  to  the  evidence  of  the  plaintiff  Boyd,  that  the  Dublin 
business  of  the  plaintiffs  was  seriously  injured  by  the  loss  of  credit 
which  had  thus  befallen  them ;  and  further,  that,  by  reason  of  the 
same  cause,  they  lost  the  employment  of  commission  agents  in  Ire- 
land of  an  Australian  mercantile  firm,  of  Martin  &  Co.,  which  had 
yielded  them  a  substantial  income. 

The  plaintiff  Boyd  gave  evidence  showing,  in  detail,  the  losses 
occasioned,  first,  in  reference  to  the  Glasgow  business,  in  which  the 
defendant  was  agent ;  secondly,  in  reference  to  their  other  business 
in  Dublin  ;  and,  thirdly,  in  reference  to  their  commission  agency  in 
the  employment  of  Martin  &  Co.     As  to  this  last,  Mr.  M'Comas, 


BOYD   v.   FITT.  469 

the  person  representing  in  London  the  house  of  Martin  &  Co., 
proved  that  he  wrote  the  letter  dismissing  the  plaintiffs  from  that 
commission  agency,  a  few  days  after  the  dishonoring  of  the  money 
order,  and  in  consequence  partly,  hut  not  solely,  of  what  he  had 
heard  of  their  being  in  difficulties  ;  he  said  also  that  the  house  of 
Martin  &  Co.  did  not  intend  to  continue  their  Irish  business,  or  to 
appoint  another  Irish  agent. 

It  was  admitted  at  the  trial  that  a  breach  of  the  agreement  had 
been  committed  by  the  defendant,  in  absenting  himself  from  Glas- 
gow, and  ceasing  to  perform  his  duties  there ;  but  the  defendant's 
counsel  contended  that,  as  to  the  non-payment  of  the  money  order 
on  the  1st  of  February,  there  was  no  breach  of  the  agreement,  be- 
cause (he  insisted)  the  350Z.,  given  to  the  defendant  on  that  day,  was 
not  sufficient  to  repay  his  previous  advances  ;  and  the  goods  which 
arrived  in  the  steamer  were  not  "  in  his  hands,"  within  the  meaning 
of  the  contract,  before  twelve  o'clock,  when  the  bank  closed,  and  be- 
fore which  hour,  therefore,  it  was  necessary  that  the  money  order 
for  250Z.  should  be  paid,  if  paid  at  all.  He  therefore  contended  that, 
as  the  plaintiffs'  claim  to  substantial  damages  resulted  from  the  loss 
of  credit  caused  by  the  dishonoring  of  the  order,  and  as  no  specific 
loss  was  proved  to  have  resulted  from  the  mere  absence  of  the  de- 
fendant (Boyd,  M'Kay  and  Gawl  being  then  in  Glasgow),  the 
plaintiffs  was  only  entitled  to  nominal  damages,  and  that  I  ought  so 
to  direct  the  jury. 

It  was  clear  upon  the  evidence  that,  if  the  goods  which  arrived  by 
the  steamer  on  the  1st  of  February,  were,  before  twelve  o'clock  on 
that  day,  "  in  the  hands "  of  the  defendant,  within  the  meaning  of 
the  contract,  those  goods,  with  the  350^.,  were  more  than  sufficient 
to  cover  the  former  advances  of  the  defendant,  and  the  advance  to 
be  made  out  of  his  cash  credit,  under  the  contract,  in  payment  of 
the  money  order.  If  those  goods  were  not  then  "  in  his  hands," 
within  the  meaning  of  the  order,  it  was  equally  clear  that  he  was 
not  bound,  under  the  contract,  to  pay  the  money  order  of  2501.  on 
the  1st  .of  February. 

As  to  this  point,  I  told  the  jury  that  the  contract  must  be  con- 
sidered in  reference  to  the  dealings  which  it  contemplated,  in  which 
the  plaintiffs  were  to  transfer  goods,  and  the  defendant  was  to  re- 
ceive and  dispose  of  them  ;  that  the  words  "  in  his  hands  "  could  not 
be  construed  literally  ;  and  that,  if  the  goods  were  within  the  defend- 
ant's dominion,  so  that  he  could  use  them,  by  disposing  of  them  for 
his  security  in  reference  to  his  advances,  they  would  be  "  in  his 
hands,"  within  the  meaning  of  this  contract ;  and  1  told  the  jury 


470  CONTRACTS   TO   TAY   MONEY. 

that  it  was  for  them  to  determine  whether  the  meat  and  cattle,  which 
arrived  in  Glasgow  on  the  1st  of  February,  were  "  in  his  hands,"  in 
the  sense  in  which  I  so  explained  the  contract,  at  the  time  when  the 
money  order  for  250Z.  should  have  been  paid  at  the  bank  on  that  day, 
before  the  bank  closed.  The  jury  found  that  the  goods  were  so 
within  his  dominion  on  the  morning  of  the  1st  of  February. 

During  a  part  of  the  argument  before  us,  this  objection  was 
mentioned,  but  was  not  I  think  relied  on  at  the  close.  On  consider- 
ation I  retain  the  opinion  that  the  contract,  as  to  this  part  of  it, 
plainly  meant  what  the  jury  were  told  it  imported,  and  that  the 
question  whether  they  were  entitled  to  give  substantial  damages 
upon  that  view  of  the  contract  is  closed  by  their  finding. 

The  consideration  of  the  case  became  thus  narrowed  to  that  of 
the  amount  of  the  damages.  The  plaintiffs  claimed  damages  under 
three  heads  of  loss  alleged  to  have  been  sustained :  first,  the  damage 
resulting  from  the  suspension  and  injury  of  the  Glasgow  trade ; 
secondly,  damages  from  the  loss  of  the  commission  agency  of  the 
Australian  house  of  Martin  &  Co. ;  thirdly,  damages  from  the  dim- 
inution or  loss  of  the  plaintiffs'  business  in  Dublin. 

As  to  all  these  heads  of  loss,  the  plaintiff  Boyd  gave  evidence  ; 
and  he  proved  that,  in  point  of  fact,  losses  were  sustained  as  to  each, 
which  he  complained  of  in  detail,  using  his  books  to  refresh  his 
memory.  By  his  own  statements,  and  by  some  other  testimony, 
evidence  was  given  tending  to  show  that,  under  each  head  of  alleged 
injury,  the  damage  resulted  from  the  lost  of  credit  occasioned  by  the 
dishonor  and  return  of  the  cash  order  for  2501.,  which  was  payable 
on  the  1st  of  February.  As  to  the  first,  I  told  the  jury  (after  com- 
menting on  the  evidence)  that  there  was  evidence  that  the  Glasgow 
business  was  of  substantial  value ;  and  that  its  continuance,  being 
one  of  the  matters  plainly  contemplated  by  the  contract,  the  loss  of 
it,  if  the  jury  were  of  opinion  that  such  loss  resulted  from  the 
defendant's  breach  of  contract,  was  a  damage  sufficiently  proximate 
to  be  recoverable  in  this  action.  As  to  the  second,  I  asked  the  jury 
to  tell  me,  first,  whether  the  loss  of  the  agency  of  Martin  &  Co.  was 
caused  by  the  defendant's  violation  of  contract ;  secondly,  whether 
such  loss  was  the  natural  result  of  such  violation ;  thirdly,  what  was 
the  amount  of  damages  sustained  by  such  loss.  I  told  them  that 
they  were  not  to  give  damages  by  reference  to  future  profits  ;  but 
that  they  were  at  liberty  to  consider  the  agency  as  an  existing  thing, 
of  a  certain  value  (that  is,  of  some  value),  and  to  consider  what  was 
the  value  lost  by  the  plaintiffs'  being  deprived  of  it.  In  reference 
to  this,  I    pointed    their    attention   to    the    circumstance  that  Mr. 


BOYD   v.   FITT.  471 

M'Comas  (the  English  agent  or  partner  of  Martin  &  Co.),  in  his 
letter  to  the  plaintiffs,  announcing  that  they  were  to  cease  to  be 
agents  in  Ireland,  and  also  in  his  evidence  at  the  trial,  stated  that 
no  other  Irish  agent  was  to  be  appointed  in  the  plaintiffs'  stead  ;  and 
that  they  (Martin  &  Co.)  contemplated  not  continuing  their  Irish 
"business.  At  the  same  time,  I  told  the  jury  that  they  were  at 
liberty  to  consider  the  agency  as  a  subsisting  thing,  which  was  ter- 
minated at  the  time,  on  the  occasion  of  the  derangements  of  the 
plaintiffs'  business,  and  that  it  might  have  continued,  as  well  as  the 
Irish  business  of  Messrs.  Martin  &  Co.,  if  the  plaintiffs  had  not  been 
removed  from  it  on  the  occasion  of  these  derangements.  As  to  the 
third  head  of  alleged  loss,  I  asked  the  jury  to  give  me  similar 
answers.  I  told  them,  as  to  this,  that  there  was  not  the  same 
evidence  of  the  loss  being  caused  by  the  defendant's  violation  of 
contract  as  was  supplied  in  the  testimony  of  Mr.  M'Comas  ;  but 
still  that  there  was  evidence  of  this  being  a  business  in  actual 
existence,  though  they  could  only  give  damages  in  reference  to  loss 
down  to  the  bringing  of  the  action ;  and  I  left  it  to  them  to  say 
whether  there  was  any  such  loss  occasioned  by  the  violation  of  the 
contract ;  and,  if  so,  what  was  the  amount  of  it. 

The  jury,  in  reference  to  the  second  and  third  heads  of  alleged 
loss,  answered  the  two  first  questions  in  the  affirmative  ;  they  found, 
as  to  the  first  head  of  alleged  loss,  that  the  plaintiff  sustained 
damage  to  the  extent  of  110/.,  of  which  65/.  arose  in  reference  to 
the  beef  trade  and  45/.  in  reference  to  the  cattle  trade.  As  to  the 
second  head,  they  found  damages,  in  reference  to  the  agency  of  the 
Messrs.  Martin,  to  the  amount  of  120/. ;  and  as  to  the  third  head, 
they  found  damages,  in  reference  to  the  general  commission  agency 
of  the  plaintiffs  in  Dublin,  to  the  amount  of  70/. ;  in  all,  300/.  They 
stated  that  they  found  that  all  these  damages,  under  each  head,  were 
the  natural  result  of  the  defendant's  breach  of  contract. 

The  defendant's  counsel  insisted  that  each  of  these  heads  of 
alleged  damages  was  too  remote ;  he  objected  to  my  leaving  them  to 
the  consideration  of  the  jury  ;  and  insisted,  in  effect,  that  I  ought 
to  direct  the  jury  that  they  were  too  remote ;  and,  further,  that  I 
ought  to  tell  them  that  the  plaintiff  was  entitled  only  to  nominal 
damages.  I  refused  so  to  direct  the  jury ;  and  they  found  a  verdict 
accordingly,  in  conformity  with  the  special  findings  on  the  questions 
submitted  to  them.  I  reserved  leave  to  the  defendant  to  move  the 
court  to  set  aside  the  assessment  of  damages,  and  to  enter  a  verdict 
for  nominal  damages,  or  to  strike  out  any  one  or  more  of  the  sums 
comprising  the  300/.  from  the  finding  of  damages ;  and  thus  to  re- 


472  CONTRACTS  TO  PAT  MONEY. 

duce  the  damages,  by  excluding  any  one  or  more  of  tlie  sums  of  651.  t 
4:51.,  1201.,  and  70/.,  as  to  which  I  ought  to  have  directed  the  jury  to 
exclude  such  sum  or  sums  from  their  verdict. 

The  case  has  been  argued  upon  showing  cause  against  a  condi- 
tional order,  obtained  in  pursuance  of  that  reservation.  In  the  early 
part  of  the  argument  the  defendant's  counsel  contended  that  the 
first  head  of  damages,  viz.,  that  which  related  to  the  loss  in  the 
Glasgow  business,  was,  according  to  the  authority  of  Hadley  v.  Bax- 
endale  (9  Exch.  341),  and  other  cases,  too  remote.  Towards  the  close 
of  the  argument,  this  head  of  objection  was  (in  my  opinion,  very 
properly)  not  insisted  on  at  the  bar.  Both  at  the  trial  and  through- 
out the  argument  it  appeared  to  me  perfectly  clear  that  the  claim  for 
damages,  as  to  this  head,  was  within  both  branches  of  the  rule  as 
comprised  in  Hadley  v.  Baxendale.  They  were  such  as  may  reason- 
ably be  supposed  to  have  been  in  contemplation  of  the  parties  at  the 
time  of  the  contract ;  for  it  was  to  guard  against  the  interruption  of 
the  business,  by  the  non-payment  of  the  money  orders,  that  the 
provision  was  made  by  the  contract  for  the  cash  credit  of  500/.,  by 
means  of  which  the  defendant  was  to  pay  these  orders,  when  he 
should  have  sufficient  goods  "  in  his  hands  ;"  and  the  interruption  of 
that  business  was,  as  the  jury,  in  my  opinions,  rightly  found,  the 
natural  result  of  the  defendant's  default  in  maintaining  the  credit 
of  the  plaintiffs,  and  causing,  by  the  loss  of  credit  immediately  result- 
ing from  his  default,  the  stoppage  of  the  business  which  it  was  the 
object  of  the  cash  credit,  and  of  the  application  of  it  in  paying 
the  money  orders,  to  maintain,  as  the  means  of  continuing  the 
trade. 

With  respect  to  the  other  two  heads  of  damages,  I  entertained 
some  doubt  at  the  trial,  and  during  a  part  of  the  argument,  whether 
the  rule  did  not  apply  to  them,  which  has  been  applied  in  many  of 
the  decided  cases,  to  exclude,  for  remoteness,  loss  of  profits  as  the 
ground  of  awarding  damages,  both  in  actions  for  breach  of  contract 
and  in  actions  for  tort.  But,  on  consideration,  it  appears  to  me  that 
the  present  case  is  not  to  be  ruled  by  applying  those  authorities.  It 
appears  to  me  that  both  the  two  last  heads  of  claim  for  damages 
fall  within  the  principle  of  the  decision  in  the  case  of  Rolin  v. 
Steward  (14  Com.  Bench,  595).  There  a  banker  was  sued  by  the 
plaintiffs,  his  customers,  for  dishonoring  the  plaintiffs'  acceptance  for 
48/.,  and  certain  checks  drawn  by  the  plaintiffs,  the  defendant  hav- 
ing funds  of  the  plaintiffs  in  his  hands,  sufficient  to  pay  the  accept- 
ance and  the  checks.  The  amount  of  the  acceptance  and  checks  to- 
gether was  1111.  14s.    There  was  no  allegation  of  damage  in  the  dec- 


BOYD   v.   FITT.  473 

laration,  except  the  averment  that  "  by  means  and  in  consequence  of 
which  said  premises,  notice  of  the  dishonor  of  the  said  bill  was  given 
to  the  said  John  Gray,  the  drawee  thereof,  and  by  means  and  in  con- 
sequence thereof  the  plaintiffs  were  greatly  injured  in  their  credit 
and  circumstances,  and  were  suspected  by  the  said  John  Gray,  and 
other  persons  who  had  been  and  were  in  the  habit  of  dealing  with 
them  in  their  said  business,  to  be  in  bad,  failing  and  insolvent  cir- 
cumstances." The  cause  of  action  was  proved,  as  alleged  ;  but  no 
proof  was  given  of  special  damage.  The  learned  Judge  (Lord 
Campbell),  in  leaving  the  case  to  the  jury,  told  them  "  that  they 
ought  not  to  limit  their  verdict  to  nominal  damages,  but  should 
give  the  plaintiffs  such  substantial  damages  as  they  should  judge  to 
be  a  reasonable  compensation  for  the  injury  they  must  have  sustained 
from  the  dishonor  of  their  checks."  The  jury  returned  a  verdict  for 
the  plaintiffs  ;  damages,  5001.  An  application  was  made  to  set  aside 
the  verdict,  for  misdirection,  and  on  the  ground  that  the  damages 
were  excessive.  The  court  were  of  opinion  that  the  damages  were 
too  large ;  but  the  plaintiffs,  at  their  instance,  consenting  to  reduce 
the  amount  of  the  verdict  to  200/.,  they  confirmed  the  verdict  for 
that  amount.  Mr.  Justice  Cress  well,  after  referring  at  some  length 
to  the  judgment  of  Lord  Tenterden  in  Marzetti  v.  Williams  (1  B.  & 
Ad.  415),  expressed  his  approval  of  Lord  Campbell's  ruling  at  nisi 
jprius,  saying,  in  reference  to  the  dishonor  of  the  check,  that  "  the 
jury  had  a  right  to  assume  that  it  would  be,  to  some  extent,  injur- 
ious ;  and  if  so,  it  was  for  them  to  say  to  what  extent."  Mr.  Justice 
Williams  said  :  "  As  to  the  alleged  misdirection,  I  think  it  cannot 
be  denied  that,  if  one  who  is  not  a  trader  were  to  bring  an  action 
against  a  banker,  for  dishonoring  a  check  at  a  time  when  he  had 
funds  of  the  customer's  in  his  hands  sufficient  to  meet  it,  and  special 
damages  were  alleged,  and  proved,  the  plaintiff  would  be  entitled  to 
recover  substantial  damages ;  and  when  it  is  alleged,  and  proved, 
that  the  plaintiff  is  a  trader,  I  think  it  is  equally  clear  that  the  jury,  in 
estimating  the  damages,  may  take  into  their  consideration  the  natural 
and  necessary  consequences  which  must  result  to  the  plaintiff  from 
the  defendant's  breach  of  contract ;  just  as  in  the  case  of  an  action 
for  a  slander  of  a  person  in  the  way  of  his  trade,  or  in  case  of  an  im- 
putation of  insolvency  on  a  trader,  the  action  lies,  without  proof  of 
special  damage.  I  therefore  think  the  direction  was  right."  This 
decision  appears  to  me  to  be  a  direct  authority  for  upholding  the  ver- 
dict in  the  case  now  before  us.  The  defendant  was  bound  to  pay 
the  plaintiffs'  money  orders,  by  a  distinct  and  specific  contract,  in 
the  events  which  occurred.     The  plaintiffs  were  traders,  carrying  on 


474  CONTRACTS   TO  PAY  MONEY. 

"business,  not  in  Glasgow  only,  but  also  in  Dublin.  The}7  are  de- 
scribed in  the  contract  itself  as  "  of  19  Eden-quay"  (which  appeared 
in  evidence  to  be  in  Dublin),  "  trading  as  George  W.  Boyd  &  Co., 
provision  merchants,  cattle  dealers,  &c."  The  defendant  therefore 
had  distinct  notice  that  they  were  engaged  in  trade.  If  no  evidence 
had  been  given  of  actual  damage,  the  case  of  Rolin  v.  Steward  is  an 
authority  for  upholding  that  the  jury  would  have  been  entitled  to 
give  a  verdict  for  substantial  damages  ;  and  if  they  would  have  been 
entitled  so  to  do  when  they  would  have  nothing  but  their  own  con- 
jectures or  inferences  to  act  on  in  reference  to  the  probable  amount 
of  injury,  it  seems  senseless  and  absurd  to  say  that  they  are  not  at 
liberty  to  take  the  real  injury,  actually  proved,  into  consideration ; 
and  to  estimate  their  damages  by  a  standard  limited  and  defined  by 
the  evidence  before  them. 

It  is  difficult  to  reconcile  all  the  cases  which  have  been  deter- 
mined upon  this  question  of  damages  being  sufficiently  proximate, 
or  of  being  too  remote.  It  is  difficult,  if  not  impossible,  to  apply 
any  rule  which  will  determine  all  cases.  Notwithstanding  what  has 
been  said  of  the  proposition  laid  down  in  Hadley  v.  Baxendale  (9 
Exch.  Rep.  341),  I  entirely  concur  in  what  seems  to  have  been  the 
opinion  of  Mr.  Justice  Ckampton  in  Smeed  v.  Foord  (1  Ell.  &  Ell. 
616),  and  of  Mr.  Baron  Wilde  in  Gee  v.  The  Lancashire  &  York- 
shire Railway  Company  (6  Hurl.  &  Nor.  221),  that  the  rule  professed 
to  be  laid  down  in  Hadley  v.  Baxendale  "  is  not  capable  of  meeting 
all  cases."  I  may  observe  that  Gee  v.  The  Lancashire  &  Yorkshire 
Railway  Company,  which  was  cited  for  the  defendant  in  the  argu- 
ment before  us,  is  rather  an  authority  in  support  of  the  verdict  in 
the  present  case ;  for  the  court  there,  while  they  held  that  the  judge 
was  wrong  in  directing  the  jury  that  certain  losses  ought  to  be  in- 
cluded in  their  estimate  of  damages,  rested  their  judgment  expressly 
on  the  ground  that  the  judge  had  so  directed  the  jury  as  a  matter  of 
law,  and  had  not  left  it  to  the  jury  to  determine  whether  the  stop- 
page of  the  plaintiff's  mill  (the  damage  resulting  from  which  he  di- 
rected the  jury  to  find)  "  was  the  natural  consequence  of  the  non- 
delivery of  the  goods."  Here  the  jury  have  found  that  the  dam- 
ages, sustained  under  each  head  of  loss  for  which  the  damages  were 
awarded,  were  the  natural  consequence  of  the  defendant's  breach  of 
contract.  If  we  were  of  opinion  that  the  effect  was  so  remotely  con- 
nected with  the  cause,  that  the  question  ought  not  to  have  been  sub- 
mitted to  the  jury,  we  should,  of  course,  not  uphold  the  verdict  as 
it  stands  ;  but,  I  own,  I  should  require  satisfactory  reasons  to  induce 
me  to  act  against  the  opinion  of  a  jury  on  such  a  question  as  this  ; 


PREHN  v.   ROYAL   BANK   OF   LIVERPOOL.  475 

and  it  is  impossible,  I  think,  to  do  so  in  the  preseiit  case,  consistently 
■with  the  principle  of  decision  applied  in  Rolin  v.  Steward. 

I  had  at  the  trial,  and  throughout  the  argument,  very  great  doubt 
as  to  the  head  of  damages,  relating  to  the  loss  of  the  agency  of 
Messrs.  Martin  &  Co.  It  appeared  to  me  that,  on  the  testimony  of 
Mr.  M'Comas,  it  was  very  questionable  that  there  was  enough  so  to 
connect  the  loss  sustained  by  the  removal  of  the  plaintiffs  from  the 
Irish  agency  of  the  Messrs.  Martin,  with  the  dishonoring  of  the 
money  order,  and  the  consequent  loss  of  credit,  as  to  show  that  the 
loss  of  the  agency  was,  within  the  rule  as  to  damages,  the  natural 
result  of  the  defendant's  breach  of  contract.  It  did  not  appear  that 
the  defendant  knew  of  the  existence  of  that  agency ;  and  if  he  did 
not,  the  loss  of  it  might  be  considered  as  not  coming  within  one 
branch  of  the  rule  in  Hadley  v.  Baxendale,  and  as  not  being  such  as 
might  reasonably  be  supposed  to  have  been  in  contemplation  of  the 
parties  at  the  time  of  the  contract.  The  jury,  however,  have  found 
that  it  was  within  the  other  branch  of  that  rule,  by  finding  that  the 
damages  under  this  head  were  the  natural  result  of  the  defendant's 
breach  of  contract ;  and  I  do  not  see  how  this  case,  as  to  this  head 
of  damages,  any  more  than  as  to  the  other,  of  the  loss  in  the  Dublin 
business,  can  be  distinguished  from  the  case  of  Rolin  v.  Steward. 

We  are  of  opinion  that  the  cause  shown  against  the  conditional 
order  must  be  allowed,  and  of  course  with  costs. 


Breach  of  Contract  to  Honor  Acceptances 


COURT    OF    EXCHEQUER. 

[1870.]    Prehn  v.  Royal  Bank  of  Liverpool  (L.  R.  5  Exch.  92). 

The  defendants,  bankers  at  Liverpool,  by  their  letter  of  credit  to  the  plaintiffs,  grain 
merchants  at  Alexandria  and  Liverpool,  undertook  to  accept  the.  drafts  of  the  plaint- 
iffs' Alexandria  firm,  the  plaintiffs  undertaking  to  put  them  in  funds  to  meet  the  bills 
at  maturity,  and  the  defendants  receiving  i  per  cent,  for  the  accommodation.  Bills 
were  accepted  by  the  defendants  under  this  arrangement,  and  the  plaintiffs  duly  pro- 
vided the  defendants  with  funds  exceeding  the  amount  of  the  acceptances.  Before 
the  bills  became  due,  the  defendants'  bank  stopped,  and  they  gave  notice  to  the 
plaintiffs  that  they  would  be  unable  to  meet  the  bills.  The  plaintiffs  arranged  with 
another  house  in  Liverpool  to  take  up  the  bills,  paying  2i  percent,  commission; 
they  were  also  obliged  to  pay  to  the  holders  the  expenses  of  protesting  the  bills  at 
Liverpool  and  Alexandria;  and  had  also  to  iocur  expense  in  telegraphic  communi- 
cations between  Liverpool  and  Alexandria.  In  an  action  against  the  defendants  for 
breach  of  the  contract  contained  in  their  letter  of  credit : 


4:76  CONTRACTS   TO   PAT   MONEY. 

Held,  that  the  plaintiffs  wore  entitled  to  recover  the  commission  and  the  notarial  and  tele- 
graphic expenses. 

Action  against  the  defendants  for  breach  of  the  contract  con- 
tained in  their  letter  of  credit  to  the  plaintiffs,  by  refusing  to  honor 
their  acceptances  of  the  plaintiffs'  drafts. 

The  plaintiffs  carried  on  business  as  grain  merchants  at  Liver- 
pool, under  the  name  of  Quentell  &  Co.,  and  at  Alexandria  under 
the  name  of  Prehn  &  Co.  For  the  purpose  of  buying  grain  at  Alex- 
andria, it  was  necessary  for  the  plaintiffs  to  be  able  to  draw  on  a 
bank  in  England ;  and  on  the  8th  of  August,  1867,  the  Liverpool 
firm  wrote  to  the  defendants  the  following  letter : 

"  With  reference  to  our  conversation  of  this  morning,  in  regard 
to  a  credit  for  our  Alexandria  firm  to  be  used  in  transactions  in 
grain,  we  beg  to  state  the  nature  of  the  business.  The  grain  to  be 
shipped  by  our  friends  is  sold  in  Liverpool  or  in  London  before  ship- 
ment, and  the  terms  of  sale  are,  cash  against  delivery  of  documents 
within  seven  days  after  receipt.  Our  friends  would  draw  on  your 
bank  at  the  time  of  shipment,  and  remit  to  you,  either  simultaneously 
or  within  a  very  short  time,  as  soon  as  the  shipment  is  completed, 
the  shipping  documents.  We  would  then  collect  the  amount,  and 
pay  it  over  to  you ;  such  collection  to  be  considered  as  in  trust,  and 
specially  to  be  applied  towards  the  payment  or  covering  of  the  drafts 
of  our  friends.  As  the  Alexandria  drafts  on  your  bank  would  be  at 
three  months  date,  you  would  be  covered  in  cash  over  two  months 
before  maturity.  We  shall  be  very  glad  if  you  will  grant  our  friends 
this  facility,  as  we  see  the  probability  of  doing  a  considerable  and 
safe  business  just  now.  We  are  prepared  to  pay  you  your  usual 
commission  of  £  per  cent,  on  such  transactions." 

On  the  9th  of  August  the  defendants'  manager  replied : 

"I  beg  to  inform  you,  in  reply  to  your  note  of  yesterday,  that 
your  firm  in  Alexandria  is  at  liberty  to  draw  on  this  company  to  the 
extent  of  20,000Z.,  in  furtherance  of  grain  shipments  on  the  condi- 
tions stated." 

On  the  20th  of  September,  and  again  on  the  14th  of  October,  a 
new  credit  was  opened  for  15,000^.,  on  the  same  terms  as  the  first  for 
20,000Z. 

On  the  21st  of  October,  1867,  the  bank  stopped  payment,  there 
being  at  that  time  running  acceptances  by  the  defendants  to  the 
plaintiffs'  drafts  under  the  above  arrangement,  to  the  amount  of 
21,928^.,  in  respect  of  which  the  plaintiffs  had  paid  in  to  the  defend- 
ants in  the  manner  above  described  over  22,000Z. 

On  the  22d,  the  plaintiffs  wrote  to  the  defendants  requesting  the 


PREHN   v.   ROYAL   BANK  OF   LIVERPOOL.  477 

appropriation  of  part  of  the  moneys  so  paid  in  to  cover  certain  of  the 
current  drafts  ;  to  which  the  manager  replied  on  the  23d  of  October : 

"  Your  favor  of  yesterday  has  been  under  consideration,  and  I  re- 
gret to  inform  you  I  am  advised  that  the  moneys  lodged  by  you 
against  the  bank's  acceptance  to  your  Alexandria  firm's  drafts  cannot 
under  present  circumstances  be  so  applied,  neither  can  we  make  the 
transfer  amounting  to  4,530/.  as  you  request,  and  accordingly  return 
the  two  checks  and  tickets  herein." 

The  plaintiffs  thereupon  made  arrangements  with  Messrs.  Mar- 
riott &  Co.,  cotton  brokers,  to  accept  the  bills  for  honor  of  drawers, 
paying  them  2^  per  cent,  commission  ;  and  proceeded  to  ascertain  the 
names  of  the  holders  of  the  bills,  and  to  communicate  to  the  Alex- 
andria firm  the  arrangements  which  they  had  made  for  meeting 
them.  The  holders  of  bills,  who  presented  them  for  better  security, 
were  informed  that  Messrs.  Marriott  &  Co.  would  accept  them,  and, 
thereupon,  according  to  mercantile  usage,  they  protested  the  bills  for 
want  of  better  security,  and  Messrs.  Marriott  &  Co.  accepted  them 
supra  protest.  In  making  these  inquiries  and  communications  nu- 
merous telegrams  passed  between  Liverpool  and  Alexandria.  By 
this  means  the  plaintiffs  were  enabled  to  prevent  the  bills  from  being 
returned  to  Alexandria ;  had  the  bills  been  so  returned  they  would 
have  become  liable  to  pay  re-exchange,  which  would  have  amounted 
to  a  much  larger  sum  than  the  cost  of  providing  for  them  in  the 
manner  actually  adopted. 

The  plaintiffs  brought  this  action  against  the  defendants  on  the 
contract  contained  in  their  letter  of  credit,  to  recover  548/.  lis.  4:d. 
paid  for  commission ;  97/.  4s.  3d.  paid  for  telegraphic,  and  44/.  Ids. 
4c/.  for  notarial  expenses  ;  and  the  defendants  paid  44/.  13s.  4:d.  into 
court. 

At  the  trial  of  the  cause,  before  Hates,  J.,  at  the  Liverpool 
summer  assizes,  1869,  a  verdict  was  found  for  the  plaintiffs  for  the 
sum  claimed,  leave  being  reserved  to  the  defendants  to  move  to  enter 
a  nonsuit  or  a  verdict  for  them,  or  to  reduce  the  damages. 

A  rule  having  been  obtained  accordingly, 

Kelly,  C.  B. — I  am  of  opinion  that  this  rule  must  be  discharged. 
It  has  been  pointed  out  that  in  an  action  on  a  bill  of  exchange  by 
an  indorsee  against  the  acceptor,  neither  general  nor  sr^ecial  damage 
can  be  recovered,  the  right  of  the  indorsee  being  limited  to  the 
amount  of  the  bill  and  interest.  But  in  the  case  before  us  the 
action  is  not  brought  on  the  bill,  but  on  a  special  contract,  the  inci- 
dents of  which  differ  materially  from  those  which  belong  to  the  con- 
tract constituted  by  becoming  a  party  to  a  negotiable  instrument, 


478  CONTRACTS   TO   PAY  MONEY. 

and  which  are  strictly  limited  by  the  law  merchant.  The  question 
presented  to  us  is  one  of  great  importance,  for  the  argument  has 
failed  to  discover  any  authority  bearing  on  the  question,  unless  we 
consider  the  decisions  in  Rolin  v.  Steward  (14  C.  B.  595  ;  23  L.  J. 
C.  P.  148),  and  Marzetti  v.  Williams  (1  B.  &  Ad.  415),  to  proceed 
upon  an  analogous  principle.  We  must  decide  the  case,  therefore, 
on  the  general  principles  of  law ;  and,  no  doubt,  according  to  those 
principles,  where  parties  have  entered  into  a  special  contract,  they 
are  entitled,  in  case  of  its  breach,  to  recover  in  respect  of  any  dam- 
age reasonably  flowing  from  the  breach.  We  must  therefore  look 
at  the  contract  and  the  circumstances,  and  see  whether  the  damage 
in  respect  of  which  the  plaintiffs  sue  was,  according  to  the  principle 
of  Iladley  v.  Baxendale  (9  Ex.  341  ;  23  L.  J.  Ex.  179),  within  the 
contemplation  of  the  parties.  The  contract  is  one  under  which  a 
mercantile  house,  having  to  obtain  credit  to  a  large  amount,  and 
being,  according  to  the  usages  of  trade,  unable  to  do  so  unless  they 
could  draw  upon  a  bank,  have  contracted  with  a  banking  company 
that  the  latter  shall,  in  consideration  of  £  per  cent.,  accept,  and  at 
maturity  pay,  their  drafts,  the  merchants  undertaking  to  supply 
funds  by  putting  the  bank  in  possession  of  goods,  or  the  title  to 
goods,  which  may  be  converted  into  money  before  the  bills  reach 
maturity.  Bills  are  drawn  under  this  contract,  and  are  duly  ac- 
cepted, and  before  maturity  the  plaintiffs  perform  their  part  of  the 
contract  by  supplying  funds  to  meet  the  acceptances.  The  defend- 
ants, feeling  themselves  unable  to  perform  their  contract  by  meet- 
ing the  bills  accepted,  very  properly  inform  the  plaintiffs  of  their 
inability,  in  order  that  the  latter  may  resort  to  such  means  as  they 
see  fit  to  protect  their  credit,  and  to  prevent  the  loss  which  would 
be  caused  by  the  dishonor  of  the  bills,  and  their  return  to  Alex- 
andria. The  plaintiffs,  acting  upon  this,  borrow  from  Marriott  & 
Co.  the  sum  necessary  to  meet  these  bills,  and  have  to  pay  for  the 
accommodation  the  sum  of  548Z.  ;  and,  further,  in  order  to  ascertain 
who  are  the  holders  of  the  bills,  and  to  communicate  the  arrange- 
ments they  have  made,  so  as  to  prevent  the  presentment  and  dis- 
honor of  the  bills,  they  necessarily  incur  expense  in  telegraphing  to 
Alexandria.  By  the  use  of  these  means  they  are  enabled  to  prevent 
the  loss  of  credit  and  of  money  which  would  otherwise  have  ensued. 
The  question  is,  whether  this  was  not  such  a  course  as  was  not  only 
reasonable  and  prudent,  but  such  as  any  man  of  business  in  Liver- 
pool would  have  resorted  to  in  the  like  circumstances.  It  is,  no 
doubt,  exactly  the  course  which  the  defendants  themselves  would 
have  pursued,  and  it  was,  doubtless,  with  a  view  to  its  being  pur- 


PREHN  v.   ROYAL   BANK   OF   LIVERPOOL.  479 

sued  that  they  gave  notice  to  the  plaintiffs  of  their  inability  to  meet 
the  bills  ;  for  it  is  impossible  to  imagine  for  what  other  purpose 
they  gave  the  information,  but  that  the  plaintiffs  might  protect 
themselves  as  they  best  could  against  the  injury  and  loss  which 
would  otherwise  have  been  incurred.  Suppose  that,  in  place  of 
what  happened,  the  bills  had  been  returned  to  Alexandria,  and  that 
the  plaintiffs  had  then  brought  their  action  for  the  expenses  so 
caused,  it  cannot  be  doubted  that  they  would  have  been  entitled  to 
recover ;  and  it  is  not  because  the  defendants  properly  gave  infor- 
mation which  had  the  effect  of  preventing  that  loss  that  the  plaint- 
iffs are  disentitled  to  recover  the  money  necessarily  expended  for 
that  purpose.  And,  further,  if  the  bills  had  simply  been  dishonored, 
and  the  plaintiffs  had  brought  their  action,  then,  without  proof  of 
any  such  special  damage,  the  jury  would,  on  the  principle  of  Rolin 
v.  Steward  and  Marzetti  v.  Williams,  have  been  entitled  to  consider 
all  the  probabilities  and  circumstances  of  the  case,  and  to  give  reason- 
able damages  accordingly.  The  plaintiffs  are  therefore,  at  least,  en- 
titled to  recover  the  money  they  have  necessarily  paid  to  prevent  the 
further  loss,  and  to  recover  it  as  general  damage. 

Martin,  B. — I  am  of  the  same  opinion ;  and  my  impression  is 
that  this  is  special  damage,  and  not  general  damage.  Mr.  Fletcher  * 
has  referred  us  to  the  excellent  work  of  Mr.  Sedgwick  on  Damages ; 
but  the  passage  he  cited  (§§  233-4)  relates  not  to  a  case  of  this  kind, 
but  to  an  action  between  a  debtor  and  his  creditor,  and  the  damages 
to  which  a  debtor  is  liable  for  non-payment  of  his  debt.  The  present 
contract  is  contained  in  two  letters ;  and  the  result  of  those  letters 
is,  that  the  defendants  are  to  accept  and  take  up  the  plaintiffs'  drafts, 
and  that  the  plaintiffs  are  to  keep  the  defendants  in  cash  to  meet 
the  bills.  The  plaintiffs  have  fully  performed  every  part  of  their 
engagement,  and  have  put  the  defendants  in  funds  to  an  amount  ex- 
ceeding the  bills  they  had  to  meet.  The  bank,  however,  were  of 
opinion  that  they  could  not,  under  the  circumstances,  apply  this 
money  to  the  payment  of  the  plaintiffs'  bills,  and  the  result  was  that 
they  broke  their  contract,  and  that  the  plaintiffs  are  entitled  to  main- 
tain this  action  against  them. 

Now,  with  respect  to  damages  in  general,  they  are  of  three  kinds : 
First,  nominal  damages — which  occur  in  cases  where  the  judge  is 
bound  to  tell  the  jury  only  to  give  such,  as,  for  instance,  where  the 
seller  brings  an  action  for  the  non-acceptance  of  goods,  the  price  of 
which  has  risen  since  the  contract  was  made.     The  second  kind  is 

*  One  of  the  defendants'  counsel. 


480  CONTRACTS   TO   PAY   MONEY. 

general  damages,  and  their  nature  is  clearly  stated  by  Ckesswell,  J., 
in  Bolin  v.  Steward.  They  are  such  as  the  jury  may  give  when  the 
judge  cannot  point  out  any  measure  by  which  they  are  to  be  assessed, 
except  the  opinion  and  judgment  of  a  reasonable  man.  Thirdly, 
special  damages  are  given  in  respect  of  any  consequences  reasonably 
or  probably  arising  from  the  breach  complained  of.  The  test  has 
been  put  in  another  form,  namely,  that  they  must  be  such  as  a  court 
or  jury  may  reasonably  consider  to  be  those  which  the  parties  would 
certainly  contemplate.  I  do  not  believe  that  to  be  the  true  test ;  for 
those  who  make  contracts  mean  to  fulfil  them.  It  is  therefore  idle 
to  enter  into  the  consideration  of  what  will  happen  if  the  contract 
is  broken.  And  to  refer  to  the  present  case,  I  imagine  that  if,  on 
making  the  contract,  the  plaintiffs  had  asked  the  bank  to  consider 
what  would  be  the  consequence  if  they  failed  to  pay  the  bills,  the 
bank  would  have  declined  to  entertain  the  question  altogether ;  but 
if  they  had  entertained  it,  they  would  probably  have  said,  "  In  that 
event,  there  are  plenty  of  people  in  Liverpool,  such  as  Messrs.  Mar- 
riott &  Co.,  who  will  be  willing  to  accommodate  you."  In  truth, 
they  would  have  contemplated  that  the  plaintiffs  would  do  as  they 
have  in  fact  done.  The  case  then  is,  that  the  plaintiffs  having  put 
the  bank  in  funds  to  meet  their  drafts,  the  bank  fail  to  do  so,  and 
thereupon  in  effect  empower  the  plaintiffs  to  take  such  steps  as  are 
reasonable  and  necessary  under  the  circumstances ;  and  I  cannot  con- 
ceive a  more  reasonable  and  proper  course  than  that  which  they 
have  in  fact  pursued.  If,  then,  any  judge  had  directed  the  jury  to 
give  none  but  nominal  damages  (and  the  defendants  must  contend 
that  to  do  otherwise  would  be  misdirection),  he  would,  in  my  opin- 
ion, have  grossly  misdirected  them.  The  damages  were,  in  my  judg- 
ment, the  reasonable  and  natural  consequence  of  the  defendants' 
breach  of  contract. 

Pigott,  B. — I  am  of  the  same  opinion.  The  rule  is  that,  as  be- 
tween debtor  and  creditor,  the  creditor  cannot  recover  more  than 
the  sum  due  and  interest.  But  this  is  not  an  action  of  that  nature, 
but  is  an  action  on  a  special  contract,  in  pursuance  of  which  the  bills, 
which  were  three  months'  bills,  were  covered  by  the  plaintiffs  two 
months  before  they  arrived  at  maturity.  The  defendants'  bank  was, 
nevertheless,  by  reason  of  its  having  stopped  payment,  unable  to  pay 
the  bills,  and  the  question  is,  what  damages  the  plaintiffs  can  recover 
in  an  action  for  'this  breach  of  contract.  I  agree  with  the  case  of 
Iladley  v.  Baxendale,  so  far  as  the  principle  there  laid  down  can  be 
applied  to  cases  infinite  in  variety ;  but  the  question  occurs  in  each 
case,  how  far  does  it  apply  ?     Now,  as  my  brother  Maktln  has  said, 


PINNEY  v.   GLEASON.  4S1 

what  would  necessarily  have  happened  in  the  event  of  dishonor,  con- 
sidered as  a  contingency,  was  that  which  happened  in  the  actual  case  ; 
namely,  that  either  the  bills  must  have  gone  back  to  Alexandria  with 
the  ensuing  result  of  the  cost  of  re-exchange,  or  else  that  the  plaint- 
iffs must  have  raised  money  to  meet  them  in  the  manner  they  have 
done.  Was  not,  therefore,  the  expense  incurred  in  raising  the  money 
a  natural  and  proximate  consequence  of  the  defendants'  breach  of 
contract  ?  It  appears  to  me  that  it  was,  and  I  regard  it  as  special 
damage,  for  the  damages  appear  to  me  to  be  measured  by  the  2£  per 
cent,  which  the  plaintiffs  paid,  and  the  other  actual  expenses  they 
incurred. 

Rule  discharged. 


NOTES  PAYABLE  IN  SPECIFIC  ARTICLES. 


COTIET  OF   ERRORS,  NEW  YORK. 

[1330.]      Pinney  v.  Gleason  (5  Wend.  393 ;  rev'g  s.  c.  5  Cow. 

152). 

The  measure  of  damages  in  an  action  for  the  non-payment  of  a  note  in  this  form,  "  For 
value  received  I  promise  to  pay  A.  B.  $79  50  on,  &c,  in  salt  at  fourteen  shillings  per 
barrel,"  is  the  sum  specified  in  the  note,  and  not  the  value  of  the  salt  on  the  day 
specified  for  payment. 

Error  from  the  Supreme  Court.  Pinney  sued  Gleason  in  the 
Onondaga  C.  P.  in  an  action  of  assumpsit,  and  declared  upon  three 
notes  ;  the  first  was  in  the  following  form  :  "  For  value  received,  I 
promise  to  pay  John  Pinney  seventy-nine  dollars  and  fifty  cents,  on 
the  first  day  of  August,  1822,  in  salt,  at  fourteen  shillings  per  barrel, 
in  good  boating  order.  Liverpool,  June  30,  1820."  (Signed)  Ara 
Gleason.  The  second  note  was  in  the  same  form,  the  same  sum 
being  specified,  payable  in  August,  1823  ;  and  the  third  was  also  in 
the  same  form,  the  sum  specified  being  ten  dollars,  payable  in  Au- 
gust, 1822.  The  defendant  pleaded  non  assumpsit,  and  the  cause 
was  tried  in  the  Common  Pleas  in  May,  1821.  The  jury  found  a 
special  verdict,  setting  forth  the  making  of  the  notes  declared  on, 
and  sundry  payments  and  set-offs  proved  by  the  defendant ;  and 
stating  that  they  had  assessed  the  damages  on  the  notes  declared  on 
upon  the  principle  that  they  (the  jury)  were  to  be  governed  by  the 
number  of  dollars  and  cents  specified  in  the  notes,  and  not  by  the 
fair  cash  value  of  salt  per  barrel  at  the  time  when  the  notes  became 
31 


482  NOTES   PAYABLE   IN   SPECIFIC   ARTICLES. 

due.  They  also  found  that  the  notes  declared  on  were  made  and 
given  in  part  consideration  of  the  transfer  of  the  interest  of  the 
payee  in  a  house  and  lot  of  land  sold  by  him  to  the  maker,  and 
prayed  the  advice  of  the  court :  if  the  court  approved  the  principle 
upon  which  they  had  assessed  the  damages,  then  they  found  a  ver- 
dict for  the  plaintiff,  for  $87  60,  otherwise,  they  found  for  the  de- 
fendant. The  Common  Pleas  gave  judgment  for  the  plaintiff.  The 
defendant  removed  the  record  into  the  Supreme  Court  by  a  writ  of 
error,  where  the  judgment  of  the  Common  Pleas  was  reversed,  and  a 
venire  de  novo  awarded  (5  Co  wen,  152,  411) ;  upon  which  the 
plaintiff  sued  out  his  writ  of  error  to  this  court. 

The  following  opinions  were  pronounced  in  the  Supreme  Court  : 

By  Mr.  Justice  Woodworth. — The  salt  not  having  been  delivered, 
the  question  is,  what  damages  is  the  plaintiff  entitled  to  recover  ?  It 
appears  to  me  that  this  is  to  be  considered  a  contract  for  the  deliv- 
ery of  salt.  Had  the  defendant  made  the  delivery  in  season,  it  is 
evident  that  45  barrels  and  %,  of  a  barrel  would  have  satisfied  the 
contract ;  because,  calculating  the  salt  at  fourteen  shillings,  it  would 
have  been  equal  to  $79  50,  the  sum  mentioned  in  the  note.  It  is 
equally  clear  that  if,  at  the  time  of  delivery,  the  value  of  salt  had 
been  only  a  dollar,  or  any  less  sum  per  barrel,  the  same  quantity 
would  have  discharged  the  note.  If  this  proposition  be  correct,  I 
think  it  follows  that  the  $79  50  specified  in  the  contract,  was  never 
contemplated  as  a  measure  of  damages,  but  merely  to  designate  the 
quantity  necessary  to  be  delivered  at  the  price  stipulated.  If  the 
defendant  was  indebted  to  the  plaintiff  $79  50,  the  plaintiff  elected 
to  take  salt  at  a  given  price,  instead  of  requiring  the  payment  of  a 
sum  certain.  He  took  his  chance  of  the  market.  If  the  salt  had 
risen  in  value,  the  plaintiff  would  have  reaped  the  benefit.  Unless 
this  be  the  fair  construction,  the  insertion  of  fourteen  shillings  per 
barrel  was  useless  ;  it  points  out,  however,  the  intention  of  the  par- 
ties too  clearly  to  be  rejected  as  surplusage.  I  am,  therefore,  of 
opinion,  that  the  value  of  the  salt  was  the  proper  measure  of  dam- 
ages. The  court  below  having  adopted  a  different  rule,  the  judg- 
ment must  be  reversed. 

Mr.  Justice  Sutherland  concurred. 

By  the  Chief  Justice. — The  Court  of  Common  Pleas  adopted 
the  true  measure  of  damages.  The  defendant  below  acknowledged 
by  his  several  notes  the  amount  of  the  debt  due  in  dollars  and  cents. 
The  delivery  of  the  salt  was  the  mere  mode  of  payment,  and  the  de- 
fendant might  have  avoided  the  payment  of  the  whole  sum  by  such 
delivery ;  but  not  having  done  so,  he  should  not  be  discharged  by 


PINNEY  v.   GLEASON.  483 

paying  less  than  the  debt  which  he  has  agreed  to  be  due.  This  pre- 
cise question  was  very  fully  considered  in  Brooks  v.  Hubbard  (3 
Conn.  R.  58),  and  the  rule  acted  upon  in  this  case  holden  to  be  the 
correct  one.  The  same  rule  was  recognized  by  this  court  in  Smith 
v.  Smith  (2  Johns,  R.  235).  I  am  of  opinion  the  judgment  ought  to 
be  affirmed. 

The  cause  having  been  argued  in  the  Court  of  Errors,  the  follow- 
ing opinions  were  delivered : 

By  the  Chancellor. — Without  expressing  any  opinion  as  to  the 
correctness  of  the  principle  adopted  in  Clark  v.  Pinney  (7  Cowen, 
681),  as  a  general  rule  of  damages  on  a  contract  for  the  delivery  of 
specific  articles,  on  a  consideration  paid  in  advance,  it  may  be  suf- 
ficient to  say  the  principle  was  wrongly  applied  to  that  case  if  the 
plaintiff  in  error  is  correct  in  his  apprehension  of  the  law  in  the  case 
now  before  us.  The  particular  terms  of  the  contracts  are  the  same  in 
both  ;  and  the  only  difference  in  the  cases  is,  that  in  one  the  salt  was 
worth  more,  and  in  the  other  less,  than  the  price  specified  in  the 
note.     The  same  principle  therefore  is  applicable  to  each. 

Contracts  in  this  particular  form  are  very  common  in  some  parts 
of  the  country,  especially  in  Vermont,  and  the  other  Eastern  States. 
I  have  not  been  able  to  find  any  adjudged  case  on  the  question  now 
before  us,  either  in  the  English  reports  or  in  those  of  this  State. 
The  question  has  arisen  in  the  adjoining  States  of  Connecticut  and 
Pennsylvania,  and  conflicting  decisions  have  been  made.  In  Meason 
v.  Phillips  (Addis.  Rep.  346),  the  question  came  before  the  court  in 
the  fifth  circuit  in  Pennsylvania,  on  a  lease  of  lands,  at  a  stipulated 
rent,  payable  in  grain  at  certain  specified  prices  per  bushel ;  and  it 
was  decided  that  the  damages  for  a  breach  of  the  contract  must  be 
ascertained  by  valuing  the  grain  at  the  current  market  price  at  the 
time  when  the  rent  was  payable.  A  similar  question  came  before 
the  Supreme  Court  of  that  State  a  few  years  since,  on  a  contract  to 
pay  $1,900  in  certain  specified  payments  of  money  and  whiskey,  and 
a  similar  rule  of  damages  was  adopted  (Edgar  v.  Bois,  11  Serg.  & 
Raw.  445).  Gibson,  justice,  who  delivered  the  opinion  of  the  court 
in  this  last  case,  pronounces  the  decision  in  Meason  v.  Phillips  to  be 
in  all  respects  sound  law.  In  Brooks  v.  Hubbard,  before  the  Su- 
preme Court  in  Connecticut  (3  Conn.  Rep.  58),  the  contract  was  to 
pay  a  certain  specified  sum  at  a  fixed  period,  in  cotton  shirting  at  30 
cents  per  yard  ;  and  it  was  there  held  that  the  amount  specified  in 
the  note,  and  not  the  actual  value  of  the  shirting  at  the  time  fixed 
for  payment,  must  determine  the  quantum  of  damages. 

The  law  being  thus  unsettled,  and  the  justices  of  the  Supreme 


484  NOTES   PAYABLE   IN   SPECIFIC   ARTICLES. 

Court  of  our  own  State  differing  as  to  the  correct  criterion  of  dam- 
ages in  such  cases,  it  becomes  necessary  for  this  court  to  examine  the 
question  with  attention ;  and  to  endeavor  to  settle  it  agreeable  to  the 
principles  of  practical  common  sense. 

The  question  is  not  without  difficulties  on  either  side,  and  the 
true  way  to  decide  it  is,  if  possible,  to  ascertain  the  real  intent  and 
understanding  of  the  parties  to  the  contract.  If  that  understanding 
and  intent  was  that  the  defendant  should  deliver  a  certain  fixed 
number  of  barrels  of  salt  at  all  events,  then  the  decision  of  the  Su- 
preme Court  was  correct,  and  they  have  adopted  a  rule  which  affords 
the  plaintiff  a  fair  equivalent  for  the  loss  he  has  sustained  by  the 
breach  of  the  contract ;  but  if  the  intention  was  to  give  the  defend- 
ant the  privilege  of  paying  the  $79  50  in  money  or  salt  at  his  elec- 
tion, and  the  rate  at  which  the  salt  might  be  delivered  was  only  in- 
troduced to  prevent  dispute  as  to  the  price  in  case  he  chose  to  avail 
himself  of  the  privilege  of  paying  in  the  specific  article,  then  the 
payment  of  the  principal  debt  and  interest  must  afford  the  rule  of 
damages,  the  defendant  having  neglected  to  avail  himself  of  the 
privilege  of  paying  in  the  specific  article. 

Pothier  says  these  agreements  for  paying  any  thing  else  in  lieu  of 
what  is  due,  are  always  presumed  to  be  made  in  favor  of  the  debtor, 
and  therefore  he  has  always  a  right  to  pay  the  thing  which  is  actually 
due,  and  the  creditor  cannot  demand  anything  else  ;  and  he  puts  the 
case  of  a  lease  of  a  vineyard  at  a  fixed  rent,  expressed  in  the  usual 
terms  of  commercial  currency,  but  payable  in  wine.  In  such  a  case 
he  says  the  lessee  is  not  obliged  to  deliver  the  wine,  but  may  pay  the 
rent  in  money  (2  Ev.  Poth.  347,  No.  497).  Chipman,  in  his  valuable 
treatise  on  the  law  of  contracts  for  the  delivery  of  specific  articles, 
puts  the  case  of  a  note  for  $100,  payable  in  wheat,  at  75  cents  per 
bushel,  and  concludes  that  it  comes  within  the  princijDle  referred  to 
by  Pothier,  and  that  the  debtor  may  pay  the  $100  in  money,  or  in 
wheat  at  the  price  specified.  lie  says  the  nature  of  the  contract  is 
this  :  The  creditor  agreed  to  receive  wheat  instead  of  money,  and  as 
the  parties  concluded  the  price  of  wheat  at  the  time  of  payment 
would  be  75  cents  per  bushel,  to  avoid  disputes  about  the  price,  they 
fixed  it  at  75  cents  in  the  contract.  If  at  the  time  fixed  for  pay- 
ment wheat  be  at  fifty  cents  a  bushel,  the  debtor  may  pay  it  in  wheat 
at  the  rate  of  75  cents.  That  if  the  parties  had  intended  the  risk  in 
the  rise  and  fall  of  the  wheat  should  be  equal  with  both,  the  contract 
would  have  been  simply  for  the  payment  of  a  certain  number  of 
bushels  (Chip,  on  Con.  35). 

This  construction  of  the  contract  appears  to  be  rational,  and  is 


PINNEY   v.   GLEASON.  485 

probably  in  accordance  with  the  practice  of  those  parts  of  the  coun- 
try where  these  contracts  are  most  frequently  made.  The  language 
is  certainly  not  the  best  which  could  be  used  to  express  such  an  in- 
tent ;  and  probably  if  the  contract  was  drawn  by  a  lawyer  he  would 
put  it  in  the  alternative,  giving  the  debtor  the  option  in  express 
terms,  to  pay  the  debt  in  money,  or  in  wheat  at  the  fixed  rate  per 
bushel.  But  certainly  if  the  intention  of  the  parties  was  that  a  cer- 
tain number  of  bushels  of  wheat  should  be  absolutely  delivered  in 
payment,  a  lawyer  would  draw  the  note  for  so  many  bushels  of 
wheat  in  direct  terms. 

It  is  also  to  be  observed  that  the  act  of  1T97  (3  vol.  Greenleaf's 
ed.  358),  which  authorized  the  clerks  to  assess  damages  on  "  con- 
tracts for  the  delivery  of  specific  articles,  at  a  value  or  price  stipu- 
lated in  the  contract,"  and  which  provision  has  been  continued  in  all 
the  subsequent  revisions  of  the  laws,  seems  to  embrace  cases  of  this 
description  only.  If  so,  it  may  be  considered  a  legislative  declara- 
tion that  the  damages  on  such  contracts  are  to  be  considered  as  fixed 
and  certain ;  and  that  the  amount  to  be  recovered  is  a  matter  of  mere 
computation. 

On  the  whole  I  am  inclined  to  concur  in  Chipman's  construction 
of  these  contracts ;  and  consequently  to  adopt  the  rule  of  damages 
laid  down  by  the  Chief  Justice  in  the  court  below.  If  this  should  be 
the  opinion  of  this  court,  the  judgment  of  the  Supreme  Court  must 
be  reversed,  and  that  of  the  Common  Pleas  affirmed. 

By  Mr.  Senator  Allen. — The  court  below  have  considered  the 
notes  alluded  to,  as  "  a  contract  for  the  delivery  of  salt,"  and  that 
the  value  of  the  salt  was  the  proper  measure  of  damage ;  "  that  the 
$79  50  specified  in  the  contract  was  never  contemplated  as  a  measure 
of  damages,  but  merely  to  designate  the  quantity  necessary  to  be  de- 
livered at  the  price  stipulated."  The  evidence  before  the  jury  how- 
ever was,  that  Pinney  transferred  to  Gleason  all  his  interest  in  a  cer- 
tain house  and  lot  in  the  village  of  Liverpool,  and  that  the  considera- 
tion of  the  transfer  was  $412  50,  for  whicli  Gleason  gave  several 
notes  or  memorandums,  among  which  were  the  notes  in  question.  It 
would  seem,  therefore,  that  the  amount  in  money  MTas  the  measure 
by  which  the  debt  was  to  be  ascertained,  and  not  the  quantity  of 
salt.  If  there  was,  in  no  event,  an  obligation  to  pay  the  sum  desig- 
nated, in  money,  as  the  Supreme  Court  appear  to  have  decided,  why 
was  the  sum  of  $79  50  inserted  ?  Had  the  agreement  been  for  the 
delivery  of  salt  only,  such  number  of  barrels  as  would  have  satisfied 
the  debt  would  have  been  mentioned,  and  not  the  sum  of  $79  50. 

Admitting  that  the  note  in  question  was  a  contract  for  the  deliv- 


4S6  NOTES   PAYABLE   IN   SPECIFIC   ARTICLES. 

ery  of  salt,  on  a  particular  day  and  at  a  stipulated  price,  the  question 
is,  may  a  contractor  neglect  or  refuse  a  fulfillment  of  his  promise 
with  impunity  ?  Gleason  promises  to  pay  Pinney  $79  50  on  the  1st 
of  August,  1822,  in  salt,  at  14  shillings  per  barrel ;  but  he  neglects 
or  refuses  to  deliver  the  salt  at  the  time  mentioned  in  the  contract, 
although  it  appears  from  the  case  salt  might  have  been  procured  at 
less  than  14  shillings  per  barrel  on  the  1st  of  August,  1822. 

In  the  case  of  Baker  v.  Mair  (12  Mass.  Rep.  121),  it  was  held,  that 
if  a  person  contract  to  do  a  specific  thing  within  a  certain  time  after 
notice,  he  will  be  liable  for  the  value  in  money,  unless  he  do  the 
thing  or  be  ready  to  do  it  at  the  expiration  of  the  time.  This  ap- 
pears a  case  in  point ;  for  the  defendant  contracted  to  do  a  specific 
thing,  namely,  the  delivery  of  salt  at  a  certain  time,  in  lieu  of  $79  50 
in  money.  He  does  not  perform,  however,  nor  was  he  ready  to  do 
it  at  the  time  stipulated ;  and  consequently  he  was,  in  accordance 
with  the  above  decision,  liable  for  the  $79  50  in  money. 

The  opinion  of  the  Supreme  Court  upon  which  they  have 
founded  their  decision  is,  that  the  value  of  salt  on  the  1st  of  August, 
1822,  was  the  only  measure  of  damage  which  could  be  sustained  by 
the  plaintiff.  This,  according  to  my  view  of  the  matter,  cannot  be 
correct.  Suppose  the  plaintiff  had  contracted  with  another  for  the 
sale  of  this  salt,  deliverable  on  the  day  he  was  to  receive  it  from  the 
defendant,  but  by  the  neglect  or  refusal  of  the  defendant  to  deliver 
it  as  promised,  he  not  only  lost  the  sale  of  the  salt,  but  perhaps  in- 
curred a  forfeiture  in  addition  ;  can  it  be  just  or  equitable  that  the 
plaintiff  shall  be  compelled  to  sustain  such  an  injury  through  the 
willful  neglect  of  the  defendant  ? 

To  my  view  it  appears  perfectly  reasonable,  that  if  a  person  con- 
tracts to  perform  a  certain  act  at  a  given  time,  whether  in  lieu  of 
the  payment  of  a  debt  or  for  a  specific  consideration,  if  he  neglects 
to  perform  at  the  time  agreed  on,  the  contract  ought  to  be  void,  un- 
less some  particular  ground  of  equity  exists  on  his  behalf  to  excuse 
and  relieve  against  the  breach  of  contract.  Kone  has  been  shown  to 
exist  in  this  case.  I  am  of  opinion  that  there  is  error  in  the  decision 
of  the  Supreme  Court,  and  that  their  judgment  ought  to  be  reversed. 

By  Mr.  Senator  Beakdsley. — Without  relying  on  the  finding  of 
the  jury  by  special  verdict,  that  the  note  in  question  was  given  with 
others  for  the  price  agreed  to  be  paid  for  a  house  and  lot,  I  think 
this  judgment  must  be  reversed.  The  note  or  memorandum  was 
given  for  $79  50,  payable  in  salt  at  fourteen  shillings  per  barrel,  and 
is  at  least  prima  facie  evidence  that  Gleason  had  received  that 
amount  or  the  value  thereof  (Brooks  v.  Hubbard,  3  Conn.  E.  58,  60). 


PIXNEY   v.    GLEASON.  487 

Money  is  the  natural  standard  of  value,  and  the  amount  in  dollars 
and  cents  expressed  in  the  note  should  not  be  rejected  for  a  more 
uncertain  standard.  The  note  is  for  a  sum  of  money  payable  in  salt 
at  fourteen  shillings  per  barrel,  and  was  payable  in  salt  for  the 
benefit  of  the  maker,  because  a  note  payable  in  specific  chattels  is 
■considered  of  less  value  than  a  note  payable  in  cash  (Chipman  on 
Contracts,  35).  The  giving  of  notes  of  this  kind  is  of  daily  occur- 
rence throughout  the  country,  and  among  farmers,  manufacturers, 
lumber  men  and  those  engaged  in  barter,  the  received  opinion  is, 
that  if  not  paid  as  specified,  the  amount  of  the  note  must  be  paid  in 
cash.  If  not  so  intended  at  the  giving  of  the  note,  it  would  be 
given  for  so  many  barrels  of  salt  (Chipman  on  Contracts,  36). 

Notes  are  frequently  given  for  a  sum  certain,  payable  in  chattels 
at  the  appraisal  of  men,  sometimes  at  the  cash  value  of  the  article, 
and  sometimes,  as  in  the  present  case,  at  a  price  agreed  upon  by  the 
parties.  The  object  in  fixing  the  price  is  to  prevent  dispute  in  re- 
gard to  the  value,  and  it  will  hardly  be  contended,  that  if  the  present 
note  had  been  given  for  $79  50,  payable  in  salt  at  the  appraisal  of 
men,  that  the  sum  specified  should  be  rejected  as  the  standard.  Why 
then,  when  the  parties  to  prevent  dispute  have  agreed  upon  the 
value,  shall  it  be  rejected  ? 

It  was  admitted  on  the  argument,  that  if  judgment  had  been 
taken  by  default,  the  clerk  would  have  been  bound  to  assess  the 
damages  at  the  sum  specified  in  the  note  (1  R.  L.  522).  This  is  un- 
doubtedly correct,  and  if  so,  I  can  see  no  good  reason  for  adopting  a 
different  rule  of  damages  because  assessed  by  a  jury.  The  Supreme 
Court  in  this  cause  and  in  Pinney  v.  Clark  (7  Cowren,  681),  consider 
these  notes  as  contracts  merely  for  the  delivery  of  salt.  They  are 
not  that  class  of  contracts  but  are  for  a  certain  sum  payable  in  salt. 
The  maker  may  discharge  the  note  by  paying  in  salt,  but  if  he  fails, 
the  amount  must  be  paid  in  money,  and  the  standard  of  value  is  the 
sum  agreed  upon  by  the  parties.  This  renders  the  .contract  and 
amount  certain,  and  there  is  no  necessity  of  evidence  aliunde  the  in- 
strument to  ascertain  the  damages. 

It  is  said  that  this  construction  is  unequal  in  its  operation  ;  that 
it  gives  the  maker  the  privilege  of  paying  in  chattels,  but  takes  from 
the  payee  the  right  of  enforcing  a  specific  performance  in  case  the 
article  should  increase  in  value.  The  answer  is,  that  the  parties  in- 
tended to  secure  this  advantage  to  the  maker,  otherwise  they  would 
have  excluded  the  dollars  and  cents,  and  given  the  note  for  so  many 
barrels  of  salt.  The  right  of  paying  in  salt  was  for  the  maker's 
benefit  (Chipman,  35,  1  Poth.  on  Obi.   347,  No.  407),  and  if  the 


488  NOTES   PAYABLE   IN   SPECIFIC   ARTICLES. 

payee  reseives  the  amount  specified  in  the  note,  he  receives  what  the 
maker  was  to  pay  for  the  property ;  and  it  was  not  contemplated 
that  he  should  secure  to  himself  not  only  the  price,  but  a  speculation 
on  the  salt,  in  case  it  should  increase  in  value,  unless  the  maker 
should  elect  to  pay  in  salt.  But  I  have  no  doubt  that  such  a  note 
may  be  discharged  by  tendering  the  amount  in  cash  instead  of  the 
specific  chattel. 

If  this  was  a  case  where  the  maker  had  agreed  to  pay  a  certain 
quantity  of  salt,  without  inserting  an  amount  in  the  note,  or  where 
he  had  agreed  that  upon  the  payee's  performing  a  certain  act  or  con- 
dition, he  would  pay  a  given  quantity,  then  the  reasoning  of  the  two 
justices  of  the  Supreme  Court  who  have  decided  this  cause  might  be 
applicable.  They  have  considered  the  note  in  this  cause,  and  in 
Pinney  v.  Clark,  as  given  for  the  delivery  of  a  quantity  of  salt,  re- 
jecting the  amount  specified  in  the  note ;  and  in  support  of  their 
opinions  have  cited  and  gone  into  an  examination  of  cases  in  relation 
to  contracts  for  the  delivery  of  stocks  and  specific  chattels  merely. 

I  shall  refrain  from  a  review  of  those  authorities,  because  I  con- 
sider this  a  different  contract,  and  of  course  those  authorities  not  ap- 
plicable ;  but  to  test  the  rule  of  the  Supreme  Court,  let  us  suppose 
the  salt  to  have  been  worth  $5  per  barrel  (a  price  at  which  it  has 
sometimes  sold),  will  it  be  contended  that  the  plaintiff  could  recover 
damages  at  that  rate  ?  more  than  $227  on  a  contract  of  $79  50  ? 
And  yet,  if  that  rule  is  correct,  he  would  be  entitled  to  such  a  recov- 
ery ;  because,  if  you  go  into  the  inquiry  as  to  the  value  of  the  ar- 
ticle for  one  party,  you  must  for  the  other  ;  and  it  is  easy  to  imagine 
a  case  under  this  rule  of  damages  that  would  be  destruction  to  the 
maker  of  the  note. 

The  above  view  of  the  case,  although  to  my  mind  perfectly  clear 
in  principle,  may  also  be  supported  by  authority,  as  will  be  found 
upon  a  slight  examination  of  cases. 

In  Smith  v.  Smith  (2  Johns.  R.  243),  a  note  was  given  for  40Z., 
payable  in  land  at  9s.  per  acre.  The  court  held  the  note  evidence  of 
money  had  and  received,  coupled  with  an  acknowledgment  that  it 
was  an  honest  debt,  and  40Z.  and  interest  the  measure  of  damages. 
In  Brooks  v.  Hubbard  (3  Conn.  E.  58),  the  note  was  for  $250,  pay- 
able in  cotton  shirting  at  30  cents  per  yard ;  the  court,  after  argu- 
ment, unanimously  decided  that  $250,  with  interest,  should  be  re- 
covered. Chief  Justice  Hosmee  in  that  case  says  :  "  The  contract  in 
question  is  one  of  the  most  common  forms  of  engagement  among 
manufacturers  and  their  workmen ;  and  from  their  frequency,  their 
meaning  is  perfectly  intelligible.     The  promise  to  pay  $250  neces- 


PINNEY  v.   GLEASON.  489- 

sarily  implies  an  indebtedness  to  that  amount ;  the  residue  of  the 
note  has  no  bearing  on  this  point,  and  relates  exclusively  to  the  mode 
of  payment."  Again  :  "  Expunge  the  $250,  or,  what  is  virtually  the 
same  thing,  decide  that  it  is  not  the  real  amount  of  the  debt  or  liqui- 
dated damages,  and  the  note  contains  no  criterion  by  which  the 
number  of  yards  can  be  estimated." 

The  same  principle  is  recognized  in  Chipman  on  Contracts,  p.  35, 
and  Pothier  on  Obligations,  1st  vol.  p.  347,  Xo.  497,  and  with  the 
opinion  of  Chief  Justice  Savage  in  this  cause,  furnish  a  preponder- 
ance of  authority  not  to  be  resisted,  and  amply  sustaining  the  view 
now  taken  of  the  cause.     The  judgment  must  be  reversed. 

By  Mr.  Senator  Benton. — The  only  question  presented  in  this 
case  for  the  consideration  of  the  court  is  whether  the  amount  of 
money  expressed  in  the  note,  or  the  value  of  the  salt  at  the  time  the 
note  fell  due,  is  the  proper  measure  of  damages. 

The  maker  of  the  note  has  fixed  the  amount  of  his  indebtedness 
in  dollars  and  cents,  and  this  no  doubt  was  the  actual  sum  due  to 
the  payee ;  and  the  delivery  of  the  salt  was  the  mere  mode  of  pay- 
ment of  which  Gleason  might  have  availed  himself,  had  he  been  so 
disposed,  even  if  the  salt  at  the  time  the  note  became  due  had  been 
selling  in  market  for  a  sum  much  less  than  the  price  stipulated  be- 
tween the  parties.  This,  I  apprehend,  is  a  contract  for  the  payment 
of  a  sum  of  money  certain  in  amount,  in  a  specific  article,  at  a  fixed 
price  ;  and  upon  looking  into  the  record,  it  will  be  seen  that  a  con- 
sideration passing  from  Pinney  to  Gleason  for  this  note  with  others 
is  duly  proved.  The  jury,  in  the  special  verdict,  have  found  this 
fact.  Hence  the  objection  cannot  arise  that  this  note  not  being  ne- 
gotiable within  the  statute,  no  consideration  passed  upon  giving  it. 
This  consideration  clearly  shows  the  intent  of  the  parties  ;  nor  is  it, 
I  think,  necessary  to  reject  any  part  of  the  instrument  as  surplusage. 
The  price  per  barrel  fixed  upon  the  salt  by  the  parties  was  such  as 
was  perfectly  satisfactory,  as  much  so  probably  as  if  any  other  or  the 
market  price  had  been  named.  If  this  note  had  been  payable  in  salt 
at  the  market  price,  put  up  in  barrels  in  good  boating  order,  upon 
the  non-delivery  of  the  specific  article  at  the  day,  what  would  have 
been  the  measure  of  damages  ?  Most  clearly  the  stipulated  amount 
mentioned  in  the  instrument.  The  substance  of  this  contract  appears 
to  me  to  be  this :  G.  promises  to  deliver  P.  on  a  day  certain,  so 
many  barrels  of  salt,  at  14  shillings  per  barrel,  as  would  amount  to 
the  sum  of  $79  50,  or,  in  default  of  this,  he  engages  to  pay  him  this 
latter  sum  in  cash. 

I  am  of  opinion  that  the  judgment  of  the  Supreme  Court  should 


490  VARIOUS   COVENANTS. 

be  reversed  with  costs,  and  the  judgment  of  the  Common  Pleas 
affirmed. 

This  being  the  unanimous  opinion  of  the  court,  the  judgment  of 
the  Supreme  Court  was  thereupon  reversed. 

Note. — The  Supreme  Court  of  Tenuessee,  on  a  question  arising  on  a  similar 
contract,  held,  in  accordance  with  the  opinion  of  the  majority  of  the  judges  of  the 
Supreme  Court  of  this  State,  that  the  value  of  the  article  at  the  time  when  the 
contract  was  to  be  performed,  and  not  the  sum  specified  in  the  contract,  was  the 
measure  of  damages  (McDonald  v.  Hodge,  5  Haywood's  Tenn.  R.  85). 

But  it  is  held  in  Georgia,  that  an  agreement  to  pay  specific  articles  of  a  stipu- 
lated value,  is  fulfilled  by  paying  the  money  instead  of  delivering  the  articles, 
and  that  the  payee  is  not  entitled  to  the  market  value  of  the  articles,  if  it  exceed 
the  value  stipulated  (Sims  v.  Cox,  40  Ga.  76). 


VARIOUS    COVENANTS. 


COURT    OF    EXCHEQUER. 

.11841.]        Penley  v.  Watts  (7  Mees.  &  Wels.  C01). 

Covenant  to  repair ;  costs  of  former  action. 

Edward  Price  leased  premises  to  W.  Penley,  in  his  life  time,  from 
the  25th  of  March,  1823,  for  sixteen  years  wanting  ten  days,  and 
Penley  covenanted  with  Price  to  keep  the  premises  in  repair,  and 
paint  the  outside  work  of  the  tenement,  and  such  of  the  buildings  as 
were  then  painted,  once  in  every  three  years,  and  the  inside  work 
once  in  every  five  years  of  the  term,  and  to  leave  the  premises  in 
repair.  Penley  underleased  the  premises  to  Watts,  from  the  24th  of 
June,  1834,  for  four  years  and  three-quarters  wanting  eleven  days, 
and  Watts  covenanted  with  Penley  to  keep  the  premises  in  repair 
(the  covenant  so  far  being  in  the  same  terms  as  in  the  original 
lease),  and  to  paint  once  during  the  term,  and  to  leave  the  premises 
in  repair. 

At  the  trial  before  Alderson,  B.,  at  the  Middlesex  Sittings  in 
last  Michaelmas  Term,  it  appeared  that  an  action  had  been  brought 
by  Price,  the  original  lessor,  against  the  present  plaintiffs,  for 
breaches  of  the  covenant  to  repair  in  the  original  lease  to  the  plaint- 
iffs' testator,  in  which  judgment  was  suffered  to  go  by  default,  and 


PENLEY  v.   "WATTS.  491 

upon  a  writ  of  inquiry  the  damages  were  assessed  at  the  sum  of  611. 
10s.,  the  amount  of  dilapidations  proved  by  a  surveyor,  whose  esti- 
mate had  been  made,  and  laid  before  the  now  plaintiffs,  before  the 
action  was  commenced.  The  costs  in  that  action  also  amounted  :  the 
plaintiff's  to  361.  and  the  defendants'  to  4:01. ;  all  which  sums  had 
been  paid  by  the  present  plaintiffs.  The  learned  judge  expressed 
his  opinion  that  the  costs  in  that  action  had  been  unnecessarily  in- 
curred, and  that,  inasmuch  as  there  was  no  covenant  by  Watts  to 
indemnify  Penley  against  any  breach  of  the  covenants  in  the  original 
lease,  the  defendants  were  not  liable  to  the  repayment  of  those  costs  ; 
and  the  amount  of  dilapidations  being  proved  at  the  sum  of  571. 10s., 
the  plaintiffs  had  a  verdict  for  that  sum  only,  leave  being  reserved 
to  them  to  increase  that  amount  by  the  sum  of  761. 

A  rule  nisi  was  obtained  accordingly,  and  the  motion  thereon 
having  been  argued,  the  following  opinions  were  delivered : 

Parke,  B. — It  seems  to  me  that  this  rule  must  be  discharged. 
This  is  not  an  action  on  a  contract  of  indemnity  ;  if  it  were,  the  de- 
fendants would  be  responsible,  unless  they  had  put  themselves  into 
the  same  condition  as  the  plaintiffs,  and  saved  them  from  all  harm, 
and  amongst  other  things,  from  the  costs  of  the  action  brought 
against  them  ;  and  if  the  plaintiffs  had  desired  to  be  so  secured,  they 
might  have  made  themselves  safe  by  taking  a  covenant  of  indemnity 
against  any  breach  of  the  covenants  in  the  original  lease  ;  and  then 
they  might  have  recovered  these  costs.  Duffield  v.  Scott  (3  T.  It. 
361)  is  an  authority  for  that.  But  this  is  not  a  contract  of  indem- 
nity, but  only  a  covenant  to  keep  the  premises  in  a  certain  state  of 
repair,  and  a  covenant  materially  differing  in  its  terms  from  that  of 
the  plaintiffs.  [His  Lordship  stated  the  respective  covenants.] 
These  two  covenants  are  not  ad  idem  either  in  substance  or  in  terms, 
the  dates  are  different ;  and  under  the  defendants'  contract,  the 
amount  of  damages  is,  the  damage  necessarily  sustained  by  the 
breach  of  their  own  covenant,  viz.,  the  amount  necessary  to  put  the 
premises  in  the  same  state  of  repair  in  which  the  defendants  ought 
to  have  kept  them.  "We  were  strongly  of  that  opinion  when  this 
rule  was  moved,  but  upon  the  case  of  Neale  v.  Wyllie,  we  thought  it 
expedient  to  grant  a  rule ;  and  if  the  circumstances  had  been  exactly 
the  same  as  they  were  in  that  case,  we  should  have  considered  our- 
selves bound  by  it,  although  we  cannot  help  thinking  that  the  court, 
on  that  occasion,  had  not  exactly  considered  the  relation  of  the  par- 
ties, and  the  circumstance  that  the  covenants  were  not  in  terms  the 
same.  In  that  case  there  was  a  demise  of  premises  to  one  Finch,  by 
an  indenture  which  contained  a  covenant  to  repair,  and  to  leave  in 


492  VARIOUS   COVENANTS. 

repair  at  the  end  of  the  term ;  and  the  declaration  stated,  that  the 
interest  of  Finch  vested  by  assignment  in  the  defendant,  who,  during 
the  term,  suffered  the  premises  to  be  out  of  repair,  and  so  left  them 
at  the  end  of  the  term,  by  reason  whereof  the  plaintiff  had  been 
forced  and  obliged  to  pay  to  one  Elizabeth  Coppock  (by  whom  the 
premises  had  been  demised  for  a  longer  term  to  the  plaintiff,  before 
his  grant  of  the  lease  to  Finch)  the  damages  and  costs  in  an  action 
brought  to  recover  the  premises.  The  court  there  thought  that  the 
covenants  were  the  same,  and  that  the  plaintiff  would  not  have  pro- 
tected himself  by  coming  on  the  premises,  or  by  payment.  But  the 
present  case  differs  from  that  in  three  particulars  :  first,  the  two 
covenants,  which  there  were  assumed  to  be  the  same,  here  differ 
materially  ;  secondly,  here  the  plaintiffs  might  have  saved  themselves 
from  all  the  costs,  if  they  had  paid  the  amount  the  surveyor  de- 
manded from  them ;  and  thirdly  (although  that  would  go  only  in 
reduction  of  damages),  it  was  competent  to  them  to  have  paid  money 
into  court,  and  so  not  to  have  incurred  the  subsequent  costs.  I  can- 
not but  think,  however,  that  the  court,  in  Neale  v.  Wyllie,  would 
not  have  come  to  the  conclusion  they  did,  if  they  had  adverted  to 
the  circumstance  that  there  were  two  different  covenants,  under 
which  a  different  measure  of  damages  was  recoverable.  But  admit- 
ting that  case  to  be  law,  it  is  materially  distinguishable  from  the 
present.  The  only  true  measure  of  damages  here  is,  what  it  would 
have  cost  the  defendants  to  put  the  premises  in  repair.  If  the 
plaintiffs  have  expended  more,  that  is  their  own  fault,  for  which  the 
defendants  are  not  liable. 

Aldeeson,  B. — I  am  of  the  same  opinion.  In  Neale  v.  Wyllie, 
the  court  thought  that  performance  by  the  assignee  of  the  lessee 
would  have  been  a  performance  by  the  lessor.  Whether  they  were 
right  may  admit  of  question  ;  but  that  was  the  principle  of  their  de- 
cision. That  would  not  have  been  so  here ;  and  therefore  it  would 
not  necessarily  have  prevented  Price  from  bringing  the  action  against 
the  plaintiffs.  These  are  materially  different  covenants.  [His  Lord- 
ship stated  them.]  A  performance  of  the  one,  therefore,  would  by 
no  means  necessarily  be  a  performance  of  the  other.  The  case  is 
distinguishable  from  Neale  v.  Wyllie  also  in  the  other  points  men- 
tioned by  my  brother  Parke  ;  and  upon  the  whole,  I  do  not  see 
how  the  payment  by  the  plaintiffs  was  a  necessary  consequence  of 
the  breach  by  the  defendants.  I  think,  therefore,  that  I  was  right 
in  the  course  I  took  at  the  trial. 

Rule  discharged. 


BEACH   v.   CRAIN.  493 

Breach  of   Continuing   Covenant   to  Repair  ;    Prior   Recovery, 
court  of  appeals,  new  york. 


[1848.]  Beach  v.  Crain  (2  K.  Y.  80). 

The  plaintiff  granted  to  the  defendants  a  right  of  way  over  his  land,  and  covenanted  to 
erect  a  gate  at  the  terminus.  The  defendants  covenanted  in  the  same  instrument  to 
make  all  the  necessary  repairs  to  the  said  gate.  The  plaintiff  erected  the  gate,  and 
the  same  was  removed  by  some  person  unknown.  Held,  that  the  defendants'  cove- 
nant bound  them  to  replace  the  gate. 

Held  ah<>,  that  the  covenant  was  continuing,  and  therefore  that  an  action  brought  thereon 
by  the  plaintiff  after  the  gate  had  been  removed,  to  recover  for  damages  occasioned 
by  cattle  coming  on  to  his  land  in  consequence  of  such  removal,  and  judgment  in 
such  action  in  favor  of  the  plaintiff,  were  not  a  bar  to  another  action  on  the  same 
covenant  to  recover  for  damages  accruing  after  the  commencement  of  the  first  suit. 

The  proper  measure  of  damages  in  an  action  upon  such  a  covenant,  after  the  removal  or 
destruction  of  the  gate,  is  not  the  cost  of  rebuilding  such  gate,  but  the  actual  injury 
sustained  by  the  covenantee  upon  his  land. 

In  December,  1846,  "William  C.  Grain  sued  Isaac  K.  Beach  and 
lien r y  M.  Beach  in  a  justice's  court  in  Herkimer  county,  and  de- 
clared upon  a  covenant  contained  in  an  instrument  executed  between 
the  parties  in  the  words  following,  viz.  : 

"  For  value  received  of  Henry  M.  Beach  and  Isaac  K.  Beach, 
and  Abram  Yan  Horn,  I,  William  C.  Crain,  do  hereby  grant,  release 
and  convey  to  the  said  Henry  M.  Beach,  Isaac  K.  Beach,  and  Abram 
Yan  Horn,  and  to  their  heirs  and  assigns  forever,  a  right  of  way  or 
road,  through  the  lands  of  said  William  C.  Crain,  situate  in  the  town 
of  Warren,  in  the  county  of  Herkimer,  and  on  the  late  William 
Tunnacliff  farm,  and  beginning  in  or  near  the  corner  of  the  garden 
of  Joshua  Thomson,  on  the  easterly  side  of  the  road  leading  from  the 
Tunnacliff  house  to  Samuel  Coleman's ;  thence  an  easterly  course, 
where  the  road  now  runs,  and  which  has  been  occupied  as  a  road  or 
passway  by  the  said  Beaches  and  others,  to  where  the  same  intersects 
the  lands  of  said  Beaches,  and  to  use  and  occupy  the  same  for  a  road 
or  passway  by  the  said  Henry  M.  Beach,  Isaac  K.  Beach,  and  Abram 
Yan  Horn,  their,  and  their  several  heirs  and  assigns  forever. 

"  It  is  further  mentioned,  stipulated  and  agreed  by  and  between  the 
said  William  C.  Crain,  and  the  said  Henry  M.  Beach  and  Isaac  K. 
Beach,  that  the  said  William  C.  Crain  shall,  at  his  own  cost,  erect  a 
good  substantial  gate  at  the  terminus  of  the  road,  in  the  corner  of  the 


494  VARIOUS   COVENANTS. 

garden  of  said  Thomson  above  mentioned,  and  made  to  swing  both 
ways,  and  may  keep  the  said  gate  there  during  his  pleasure,  and  all 
the  repairs  necessary  to  be  made  to  said  gate  to  be  made  by  said 
Beaches,  and  in  passing  and  repassing  said  gate  said  Beaches  are  to 
use  common  care  in  having  said  gate  shut  after  them  ;  it  is  further 
agreed  that  said  gate  may  be  taken  down  and  kept  down  during  the 
winter  season  in  each  and  every  year  during  the  time  said  Crain  shall 
choose  to  have  a  gate  kept  there. 

"  Witness  our  hands  and  seals,  this  25th  day  of  August,  1845. 

"  William  C.  Ckaln.  [l.  s.] 
"  Isaac  K.  Beach.  [l.  s.] 
"  Henry  M.  Beach,  [l.  s.]  " 

The  declaration  averred  that  the  plaintiff,  on  the  25th  day  of  Au- 
gust, 1845,  erected  a  gate  at  the  place  indicated  in  the  instrument, 
and  in  pursuance  of  the  covenant  on  his  part.  The  breach  com- 
plained of  was  that  the  defendants  did  not,  after  the  erection  of  the 
gate,  and  while  it  was  the  pleasure  of  the  plaintiff  to  have  a  gate 
continued  at  that  place,  make  the  necessary  repairs  thereto,  but,  on 
the  contrary,  on  the  19th  of  October,  1846,  suffered  the  gate  to  be- 
come dilapidated,  broken  down  and  nearly  destroyed,  and  to  remain 
in  that  condition  until  the  30th  of  November,  184G,  by  means  of 
which  the  plaintiff  had  suffered  great  damage  by  cattle,  &c. 

The  defendants  pleaded  the  general  issue,  and  gave  notice  there- 
with that  they  wTould  prove  that  the  gate  was  removed  about  the  22d 
of  June,  1846,  and  had  not  since  that  time  been  rebuilt ;  that  the 
defendants  had  refused  to  replace  the  gate  after  it  was  so  removed, 
and  that  nothing  had  been  done  to  it  since ;  that  the  plaintiff*,  on  the 
29th  of  September,  1846,  sued  the  defendants  in  a  justice's  court  and 
declared  upon  the  same  covenant  above  set  forth,  alleging  as  a  breach 
thereof  that  after  the  erection  of  the  gate  in  question,  and  while  it 
was  the  pleasure  of  the  plaintiff  to  continue  it,  the  defendants  did 
not  keep  the  same  in  good  repair  and  condition,  but  suffered  it  to 
become  dilapidated,  destroyed  and  removed,  and  would  not  replace 
the  same  by  the  erection  of  a  new  one  or  otherwise,  whereby  the 
plaintiff  was  damaged  by  reason  of  cattle  grazing  on  his  land,  &c.  ; 
that  the  defendants  pleaded  in  that  suit  the  general  issue,  and  gave 
notice  therewith  that  they  would  prove  that  the  gate  had  been  wholly 
removed,  that  they  had  never  refused  to  repair  it,  and  that  the  plaint- 
iff had  not  kept  a  gate  as  he  was  bound  to  do  ;  that  on  the  19th  of 
October,  1846,  the  said  former  suit  was  tried,  and  judgment  rendered 
on  the  same  day  in  the  plaintiff's  favor  for  one  dollar  damages,  and 
costs  of  suit. 


BEACH   v.   CRAIIST.  495 

On  the  trial  of  the  present  action,  it  was  admitted  that  the  parties 
executed  the  covenant  above  set  forth  ;  that  soon  after  the  execution 
thereof  the  plaintiff  erected  a  gate  at  the  place  specified  therein  ;  that 
such  gate  was  removed  about  the  23d  of  June,  1846,  by  some  person 
unknown,  and  had  never  been  found  ;  that  the  gatepost  and  two  iron 
staples  remained  ;  that  before  the  1st  of  September,  1846,  the  plaint- 
iff requested  the  defendants  to  replace  the  said  gate,  which  they 
refused  to  do  ;  and  that  the  cost  of  rebuilding  said  gate  would  be  one 
dollar,  besides  lumber.  It  was  also  admitted  that  a  former  suit  was 
brought,  and  that  the  proceedings  and  judgment  therein  were  truly 
stated  in  the  defendants'  notice  above  set  forth  ;  and  that  on  the  trial 
of  such  former  suit  the  same  facts  were  proved  which  were  admitted 
on  the  trial  of  this  cause.  It  was  further  admitted  that  this  suit  was 
brought  to  recover  damages  on  account  of  the  gate  remaining  unre- 
paired or  not  rebuilt  from  the  19th  of  October,  1846,  to  the  30th  of 
November,  1846,  as  alleged  in  the  declaration. 

Upon  the  above  pleadings  and  admissions  the  cause  was  submitted 
to  the  justice,  the  parties  agreeing  that  if  he  found  for  the  plaintiff 
he  might  assess  such  damages  as  he  should  think  just.  The  justice 
decided  in  favor  of  the  defendants,  and  his  judgment  was  removed 
by  certiorari  into  the  common  pleas  of  Herkimer  county,  and  was 
affirmed  by  that  court.  The  supreme  court  sitting  in  the  fifth  dis- 
trict, on  error  brought,  reversed  the  judgments  of  the  common  pleas 
and  of  the  justice,  and  the  defendants  thereupon  brought  error  into 
this  court. 

Weight,  J.,  delivered  the  opinion  of  the  court.  This  case  in- 
volves the  consideration  of  two  questions,  either  of  which,  if  deter- 
mined against  the  defendant  in  error,  would  defeat  his  recovery.  1st. 
"Whether,  under  their  covenant  to  make  all  necessary  repairs  to  the 
gate,  the  duty  of  rebuilding  or  replacing  it  devolved  in  law  upon  the 
Beachs'.  2d.  Whether  the  former  suit  is  a  good  bar  to  the  present 
action. 

[The  learned  judge  having  discussed  these  two  questions,  and 
answered  the  first  in  the  affirmative  and  the  second  in  the  negative, 
proceeded  as  follows  :] 

The  plaintiffs  in  error  insist  that  Crain  did  recover,  or  legally 
should  have  recovered,  in  the  first  suit,  a  sum  sufficient  to  enable  him 
to  replace  the  gate.  But  this  argument  supposes  that  upon  the 
Beachs'  refusing  to  repair,  there  was  a  total  breach  of  their  covenant, 
and  that  they  could  relieve  themselves  from  subsequent  obligation  by 
the  payment  of  a  gross  sum  in  damages.  If  this  were  so,  Crain 's 
recovery  should  also  have  embraced  a  sum  sufficient  to  keep  the  gate 


496  VARIOUS   COVENANTS. 

in  necessary  repair,  whilst  it  was  his  pleasure  that  it  should  remain  : 
a  sum  that  I  imagine  there  would  be  insuperable  difficulty  to  estimate. 
Whilst  the  obligation  of  the  plaintiffs  in  error  continued,  and  it  was 
entirely  practicable  for  them  to  perform,  I  do  not  well  see  how  the 
value  of  a  new  gate  could  have  legitimately  formed  a  part  of  the 
damages  to  be  recovered  under  the  pleadings  and  evidence  in  the  first 
suit.  It  is  possible,  that  if  Crain,  for  the  protection  of  his  lands,  and 
with  the  view  of  making  the  default  of  the  Beachs'  the  least  expen- 
sive to  them,  had,  prior  to  such  suit,  rebuilt  or  replaced  the  gate,  he 
might  have  recovered  the  cost  thereof  in  the  shape  of  damages.  But 
it  is  enough  to  say  that  no  such  thing  was  done;  neither  did  the  law 
devolve  upon  him  a  duty  which  the  plaintiffs  in  error  had  covenanted 
to  perform,  and  which  in  its  performance  was  neither  difficult  or  im- 
practicable. As  a  matter  of  fact,  it  is  obvious  from  the  pleadings 
and  evidence  in  the  first  suit,  and  the  amount  of  the  judgment 
therein,  that  the  cost  of  erecting  a  new  gate  was  not  recovered  ;  as 
a  matter  of  law,  under  the  circumstances  of  this  case,  it  ought  not  to 
have  been. 

I  am  of  the  opinion  that  the  judgment  of  the  justice  and  common 
pleas  should  be  reversed,  and  that  of  the  Supreme  Court  affirmed. 

Judgment  affirmed. 


Breach  or  Covenant  not  to  Forfeit  Life  Insurance  Policy, 


COURT  OF  QUEENS  BENCH. 

[1864.]        Hawkins  v.  Coulthukst  (5  B.  &  S.  343). 

A  deed  by  which  the  defendant  assigned  a  policy  of  insurance  on  his  life  for  1,000/.  to 
trustees  for  his  creditors,  contained  a  covenant  tliat  he  would  not  do  any  act  or  thing 
by  which  the  policy  should  be  forfeited.  The  policy  was  subject  to  a  condition 
that  if  the  assured  should  go  beyond  the  limits  of  Europe  without  license  from  the 
directors,  the  policy  should  be  void.  In  an  action  for  a  breach  of  covenant  in  that 
the  defendant  went  beyond  the  limits  of  Europe  without  license  from  the  directors: 
Held,  that  the  measure  of  damages  was  the  present  value  of  the  policy  to  be  assessed 
by  an  actuary,  taking  into  consideration  the  fact  that  the  defendant  covenanted  to 
pay  and  should  pay  premiums  on  the  policy. 

The  declaration  stated  that  by  deed  bearing  date  the  7th  May, 
1856,  after  reciting  that  the  defendant  had  by  policy  of  insurance 
dated  the  20th  March,  1856,  effected  an  insurance  on  his  life  in  The 
United  Kingdom  Assurance  Society  for  the  sum  of  1,000Z.  subject  to 


HAWKINS   v.    COULTHURST.  497 

the  annual  premium  of  20Z.  2s.  6r/.,  and  that  the  defendant  was  in- 
debted to  the  several  persons  named  in  the  schedule  thereto  in  the 
amounts  set  opposite  to  their  respective  names,  and  that  the  defend- 
ant had  agreed  to  assign  the  policy  and  all  moneys  secured  and  receiv- 
able thereon  to  the  plaintiffs  upon  the  trusts  thereinafter  contained 
for  securing  the  payment  of  the  debts  with  interest,  the  defendant 
assigned  to  the  plaintiffs  the  policy  of  assurance  and  the  full  benefit 
and  advantage  thereof,  and  of  all  and  every  sum  of  money  that  should 
become  due  or  be  recoverable  upon   or  by  virtue  of  it,  and  all  the 
right,  title,  interest,  property,  benefit,  claim  and  demand  whatsoever 
both  at  law  and  in  equity  of  him  the  defendant  in,  to  or  out  of  the 
same :  To  have,  receive  and  take  the  policy,  sum  and  sums  of  money 
and  premises  unto  the  plaintiffs,  their  executors,  administrators  and 
assigns.     In  trust,  nevertheless  as  a  pledge  or  security  for  the  pay- 
ment of  the  several  debts  mentioned  in  the  schedule,  with  interest 
after  the  rate  of  51.  per  cent,  per  annum.     The  deed  contained  a 
covenant  that  the  defendant  had  not  at  any  time  theretofore  made, 
done,  executed  or  suffered,  and  should  not  nor  would  at  any  time 
thereafter  make,  do,  execute  or  suffer,  any  act,  deed,  matter  or  thing 
whatsoever  by  means  whereof  the  policy  of  assurance  thereby  assigned 
or  intended  so  to  be  was,  could,  should  or   might  be  impeached, 
charged,    avoided,  forfeited,  vacated    or  encumbered,  or  by  means 
whereof  the  plaintiffs  should  or  might  be  hindered  or  prevented  from 
recovering  or  receiving  the  sum  or  sums  recoverable  or  to  be  recov- 
ered thereupon  or  by  virtue  thereof ;  and  that  he  would  during  the 
continuance  of  the  security  regularly  pay  the  premiums  and  do  all 
other  things  necessary  to  be  paid  and  done  for  keeping  the  policy  of 
insurance  on  foot,  and  would  in  all  things  conform  to  the  rules  of 
The  United  Kingdom  Assurance  Society  so  far  as  related  to  the  policy 
to  the  intent  that  the  same  might  be  preserved  in  full  force ;  and 
would,  within  seven  days  after  the  premiums  should  become  due,  de- 
liver the  receipt  for  the  same  to  the  plaintiffs ;  and  further,  that  in 
case  he  should  neglect  to  pay  the  annual  sum  payable  in  respect  of 
the  policy  for  keeping  the  same  on  foot,  or  to  deliver  to  the  plaintiffs 
the  receipt  for  the  premium,  it  should  be  lawful  for  the  plaintiffs  to 
advance  and  pay  such  annual  sum,  and  he  would,  on  demand,  repay 
such  sum  to  them  with  interest.     Averment:  That  the  policy  of  as- 
surance was  made  subject  to  and  under  the  condition  or  proviso, 
amongst  others,  that  is  to  say,  that  in  case  the  assured  should  go  be- 
yond the  limits  of  Europe  without  previous  license  from  the  board  of 
directors  of  the  assurance  company,  for  that  purpose  the  policy  should 
be  null  and  void,  and  all  moneys  paid  by  or  on  behalf  of  the  assured 
32 


±98  VARIOUS   COVENANTS. 

on  account  of  the  insurance,  should  be  forfeited.  Breaches  (first  and 
second) :  That  the  defendant  neglected  to  pay  the  annual  premiums, 
or  deliver  to  the  plaintiffs  within  seven  days  after  the  premiums  be- 
came due,  the  receipts  for  the  same ;  and  thereupon  the  plaintiffs,  for 
the  purpose  of  keeping  the  policy  on  foot,  paid  to  The  United  King- 
dom Assurance  Society  such  annual  sums  of  money ;  and  although, 
&c,  the  defendant  had  not  repaid  the  same  to  the  plaintiffs.  Third  : 
That  the  defendant  went  beyond  the  limits  of  Europe,  to  wit,  to  the 
Colony  of  Canada  East,  without  previous  license  from  the  board  of 
directors  of  The  United  Kingdom  Assurance  Society  for  that  purpose. 
Whereby  and  by  reason  of  the  premises,  the  policy  of  assurance  be- 
came and  was  vacated,  and  became  and  was  null  and  void,  and  the 
plaintiffs  lost  the  benefit  and  security  of  the  policy  for  the  payment 
of  the  premiums  and  sums  of  money  paid  and  advanced  by  them,  and 
the  policy  became  wholly  lost  as  a  security  to  the  creditors  for  the  pay- 
ment of  their  several  debts. 

First  plea  :  That  the  deed  was  not  the  defendant's  deed. 

Issue  thereon  : 

On  the  trial  before  Siiee,  J.,  at  the  sittings  in  London  after 
Hilary  Term,  a  verdict  was  entered  for  the  plaintiff  for  150/.  17*.  on 
the  first  breach,  1,?.  on  the  second,  and  Is.  on  the  third ;  with  liberty 
to  the  plaintiffs  to  move  to  increase  the  damages  on  the  last  breach 
to  1,000/.  or  such  other  sum  as  the  court  might  direct. 

In  Easter  Term,  a  rule  accordingly  was  obtained. 

II.  James  showed  cause  :  The  proper  measure  of  damages  is  the 
present  value  of  the  policy  to  be  ascertained  by  deducting  from  the 
full  amount  assured,  the  sums  which  would  be  estimated  as  payable 
by  way  of  premiums,  if  the  policy  had  not  lapsed,  according  to  the 
average  duration  of  human  life. 

It.  A.  Fisher  {Iluddleston  with  him),  in  support  of  the  rule  : 
The  security  having  been  destroyed  by  the  voluntary  and  wrongful 
act  of  the  assured,  the  trustees  of  the  creditors  are  entitled  to  the 
1,000/.  [Crompton,  J .  :  You  contend  that  the  trustees  are  entitled 
to  the  1 ,000/.  twenty  years,  it  may  be,  before  it  is  due.  Blackburn, 
J.  :  Suppose  a  policy  subject  to  a  condition  that  if  the  assured  die 
upon  the  seas  it  should  be  void,  as  in  Dormay  v.  Borradaile,  5  C.  B. 
380  (E.  C.  L.  R.  vol.  57),  and  the  assured  had  so  died.]  If  this  policy 
were  in  force  the  trustees  might,  by  the  death  of  the  assured,  be  en- 
titled to  the  1,000/.  immediately ;  and  where  the  defendant  maybe 
regarded  in  the  light  of  a  wrongdoer  in  breaking  his  contract,  the 
damages  are  to  be  assessed  on  the  highest  principle.  In  Chitty  on 
Contracts,  p.  793  (7th  ed.,  by  Russell,  cited  in  Mayne  on  the  Law  of 


WICKER   v.   HOPPOCK.  499 

Damages,  p.  10),  it  is  said  that  in  such  cases  "a  greater  latitude  is 
allowed  to  the  jury  in  assessing  the  damages ;"  as  in  an  action  on  a 
bond  to  resign  a  liviug  (Lord  Sondes  v.  Fletcher,  5  B.  &  A.  835  [E. 
C.  L.  R.  vol.  7]).  The  present  is  analogous  to  an  action  for  destroy- 
ing or  detaining  title  deeds,  in  which  the  plaintiff  recovers  the  whole 
value  of  the  land  (see  Robertson  v.  Dumaresq,  2  Moo.  P.  C.  C.  N.  S. 
66,  95).  [Crompton,  J.  :  In  the  latter  case,  large  damages  are  given 
in  order  to  constrain  the  defendant  to  give  up  the  title  deeds.  Mellob, 
J. :  The  present  is  more  like  an  action  upon  the  breach  of  a  contract 
for  the  purchase  of  a  reversion.] 

Per  curiam  (Crompton,  Blackbuen,  Mellob  and  Shee,  JJ ). 

Rule  absolute  in  the  following  terms  : 

"  It  is  ordered  that  the  damages  given  on  the  verdict  obtained  in 
this  cause  on  the  third  breach  be  increased  by  the  same  being  assessed 
on  the  present  value  of  the  policy,  taking  into  consideration  the  fact 
that  the  defendant  covenanted  to  pay  and  should  pay  premiums  on 
the  policy,  and  that  such  damages  be  assessed  by  an  actuary  to  be 
agreed  on  between  the  attorneys  for  both  parties,"  &c. 


SUPREME   COUET   OF   THE    UNITED    STATES. 

[1867.]  Wicker  v.   Hoppock   (G  Wall.   94.) 

On  a  breach  of  a  contract  to  pay,  as  distinguished  from  a  contract  to  indemnify,  the 
amount  whioh  would  have  been  received  if  the  contract  had  been  kept,  is  the  meas- 
ure of  damages  if  the  contract  is  broken. 

Error  to  the  Circuit  Court  for  Northern  Illinois. 

Caldwell  being  owner  of  a  distillery,  subject  to  a  mortgage  to 
Hoppock,  leased  it  to  Chapin  &  Co.  for  three  years ;  it  being  agreed 
by  the  lease  itself  that  the  rent,  so  much  a  year,  should  be  paid  by 
Chapin  &  Co.  directly  to  Caldwell  the  mortgagee,  so  as  to  keep  down 
in  part  the  interest  on  the  mortgage.  Chapin  &  Co.,  after  being  for 
about  eighteen  months  in  occupation  of  the  distillery,  and  accumula- 
ting at  it  a  considerable  amount  of  personal  chattels,  such  as  are  com- 
monly used  about  such  a  place,  assigned  the  lease  to  one  Wicker  un- 
der some  sort  of  partnership  arrangement,  and  Wicker  went  in.  The 
rent  not  having  been  paid,  according  to  his  agreement,  by  Chapin  Ar 
Co.  to  Hoppock,  the  mortgagee,  Hoppock  applied  now  to  Wicker  to 
pay  it,  giving  him  to  understand  that  unless  he  did  pay  it,  suit  of 


500  VARIOUS   COVENANTS. 

foreclosure  would  have  to  be  brought  on  the  mortgage,  and  he  dis- 
possessed. After  some  negotiations,  Wicker,  who  it  seemed  was  de- 
sirous of  becoming  owner  of  the  personal  chattels  which  Chapin  & 
Co.  had  left  at  the  distillery,  agreed  with  Hoppock  that  if  he,  IIop- 
pock,  would  sue  Chapin  &  Co.  for  the  amount  of  rent  in  arrear  and 
obtain  judgment  and  levy  on  the  property,  he,  Wicker,  "  would  bid 
it  oif  for  whatever  the  judgment  and  costs  might  be."  Hoppock  did 
accordingly  sue  and  obtain  judgment  against  Chapin  &  Co. ;  the  judg- 
ment having  been  for  $2,206.  Chapin  &  Co.  were  indebted  also  to 
Wicker  on  some  transactions  growing  out  of  the  distillery ;  and 
Wicker,  who  asserted  himself  to  have  advanced  money  on  it,  caused 
most  of  the  property  already  mentioned  as  left  by  Chapin  &  Co.,  to 
be  removed  to  Chicago.  Iloppock's  counsel  meaning  to  proceed  with 
his  execution,  gave  notice  to  Wicker  of  the  intention  to  sell  and  of 
the  day  of  sale.  Wicker,  however,  did  not  attend  the  sale,  nor  was 
any  bid  made  in  his  name.  And  all  the  property  of  Chapin  &  Co. 
that  was  there  and  could  be  levied  on  was  knocked  down  to  Hoppock, 
the  only  bidder,  for  the  sum  of  two  dollars.  Thereupon  Hoppock 
brought  assumpsit  in  the  Circuit  Court  for  Northern  Illinois — the 
suit  below — against  Wicker,  to  recover  damages  for  the  breach  of  his 
agreement  to  appear  at  the  sheriff's  sale  and  bid  off  the  property 
levied  on  for  the  full  amount  of  the  judgment  for  which  the  execu- 
tion issued. 

The  court  below,  against  requests  by  the  defendant's  counsel  to 
charge  otherwise,  considered  and  charged  : 

1.  That  the  agreement  between  Hoppock  and  Wicker  was  not  in- 
valid as  tending  to  prevent  the  fairness  of  a  judicial  sale,  and  there- 
fore against  public  policy. 

2.  That  the  measure  of  damages  was  the  amount  of  the  judgments 
with  interest  and  costs. 

The  case  was  now  here  on  writ  of  error  by  Wicker,  for  a  review 
on  these  points. 

Mr.  Justice  Swayne,  in  delivering  the  opinion  of  the  court,  after 
holding  that  the  agreement  in  controversy  was  valid,  proceeded  as 
follows  : 

It  is  urged  that  the  court  erred  in  instructing  the  jury,  that  if  the 
plaintiff  was  entitled  to  recover,  the  measure  of  damages  was  the 
amount  of  the  judgments,  with  interest  and  the  cost. 

The  general  rule  is,  that  when  a  wrong  has  been  done,  and  the 
law  gives  a  remedy,  the  compensation  shall  be  equal  to  the  injury. 
The  latter  is  the  standard  by  which  the  former  is  to  be  measured. 
The  injured  party  is  to  be  placed,  as  near  as  may  be,  in  the  situation 


WICKER   v.   HOPPOCK.  501 

he  would  have  occupied  if  the  wrong  had  not  been  committed.  In 
some  instances  he  is  made  to  bear  a  part  of  the  loss,  in  others  the 
amount  to  be  recovered  is  allowed,  as  a  punishment  and  example,  to 
exceed  the  limits  of  a  mere  equivalent. 

It  has  been  held  that,  "  where  a  party  is  entitled  to  the  benefit  of 
a  contract,  and  can  save  himself  from  a  loss  arising  from  a  breach 
thereof,  at  a  trifling  expense  or  with  reasonable  exertions,  it  is  his 
duty  to  do  it ;  and  he  can  charge  the  delinquent  party  with  such  dam- 
ages only,  as  with  reasonable  endeavors  and  expense,  he  could  not 
prevent "  (Miller  v.  Mariners'  Church,  7  Greenl.  56  ;  Eussell  v. 
Butterfield,  21  Wend.  304 ;  Ketch  ell  v.  Burns,  21  lb.  457  ;  Taylor  v. 
Read,  4  Paige,  571 ;  United  States  v.  Bumham,  1  Mason,  57.) 

If  the  contract  in  the  case  before  us  were  one  of  indemnity,  the 
argument  of  the  counsel  for  the  plaintiff  in  error  would  be  conclusive. 
In  that  class  of  cases  the  obligee  cannot  recover  until  he  has  been  ac- 
tually damnified,  and  he  can  recover  only  to  the  extent  of  the  injury  he 
has  sustained  up  to  the  time  of  the  institution  of  the  suit.  But  there 
is  a  well-settled  distinction  between  an  agreement  to  indemnify  and 
an  agreement  to  pay.  In  the  latter  case,  a  recovery  may  be  had  as 
soon  as  there  is  a  breach  of  the  contract,  and  the  measure  of  the  dam- 
ages is  the  full  amount  agreed  to  be  paid. 

In  a  note  of  Sergeant  Williams  to  Cutler  and  others  v.  Southern 
and  others,  it  is  said  that  in  all  cases  of  covenants  to  indemnify  and 
save  harmless,  the  proper  plea  is  non  damnificatus,  and  that  if  there 
is  any  injury,  the  plaintiff  must  reply  to  it,  but  that  this  plea  "  cannot 
be  pleaded,  when  the  condition  is  to  discharge  or  acquit  the  plaintiff, 
from  such  bond  or  other  particular  thing,  for  the  defendant  must  set 
forth  affirmatively  the  special  manner  of  performance  "  (Sanders,  117, 
note  1). 

In  Port  v.  Jackson  (17  Johns.  239),  the  assignee  of  a  lease  cove- 
nanted to  fulfill  all  the  covenants  which  the  lessee  was  bound  to  per- 
form. It  was  held  that  the  agreement  was  substantially  a  covenant 
to  pay  the  rent  reserved,  as  it  should  accrue ;  that  a  plea  of  non  dam- 
nificatus  was  bad,  and  that  the  assignor  could  recover  the  amount  of 
the  rent  in  arrear  as  soon  as  a  default  occurred,  without  showing  any 
injury  to  himself  by  the  delinquency  of  the  assignee.  The  assignee 
was  liable  also  to  the  lessor  for  the  same  rent  by  privity  of  estate. 
The  judgment  was  unanimously  affirmed  by  the  Court  of  Errors. 

In  The  Matter  of  Negus  (7  Wend.  503),  the  covenant  was  to  pay 
certain  partnership  debts,  and  to  indemnify  the  covenantee,  a  retiring 
partner,  against  them.  It  was  held  that  the  covenant  to  indemnify 
did  not  impair  the  effect  of  the  covenant  to  pay,  and  the  same  prin- 


502  VARIOUS   COVENANTS. 

ciple  was  applied  as  in  the  case  of  Port  v.  Jackson.  We  might  refer 
to  numerous  other  authorities  to  the  same  effects  but  it  is  deemed  un- 
necessary. 

In  the  case  before  us,  as  in  the  cases  referred  to,  the  defendant 
made  a  valid  agreement,  in  effect,  to  pay  certain  specific  liabilities. 
They  consisted  of  the  judgments  of  Hoppock  against  Chapin  &  Co. 
If  Wicker  had  fulfilled,  the  judgments  would  have  been  extinguished. 
As  soon  as  Hoppock  performed,  the  promise  of  Wicker  became  abso- 
lute. No  provision  was  made  for  the  non-performance  of  Wicker, 
and  the  further  pursuit  by  Hoppock  of  the  judgment  debtors.  In- 
demnity was  not  named.  That  idea  seems  not  to  have  been  present 
to  the  minds  of  the  parties.  The  purpose  of  Hoppock  obviously  was 
to  get  his  money  without  the  necessity  of  proceeding  further  against 
Chapin  &  Co.  than  his  contract  required.  There  is  no  ground  upon 
which  Wicker  can  properly  claim  absolution.  He  removed  and  keeps 
the  property  he  was  to  have  bought  in.  The  consideration  for  his 
undertaking  became  complete,  when  it  was  exposed  to  sale.  The 
amount  recovered  only  puts  the  other  party  where  he  would  have 
been  if  Wicker  had  fulfilled,  instead  of  violating  the  agreement. 

The  rule  of  damages  given  to  the  jury  was  correct. 

Judgment  affirmed. 


Breach  of  Covp:nant  to  Pay  Taxes. 


COMMISSION  OF  APPEALS,  NEW  YORK. 

[1872.]      Bector,  &c,  of  Trinity  Church  v.  Higgins 

(48  N.  Y.  532). 

A  covenant  in  a  lease,  that  the  lessee  shall  pa}*  all  taxes  and  assessments  imposed  on  the 
premises  during  the  term  of  the  lease,  is  not  a  mere  contract  of  indemnity,  hut  is  an 
agreement  that  such  taxes  and  assessments  shall,  -when  levied,  become  the  debts  of 
the  lessee. 

Such  a  covenant  is  broken  whenever  the  les-ee  Deglects  to  pay  any  tax  or  assessment 
duly  imposed,  and  therefore  it  is  not  necessary  that  the  lessor  should  pay  such  tax 
or  assessment  before  commencing  suit  for  breach  of  the  covenant. 

Such  a  covenant  is  not  to  be  construed  as  one  for  indemnity,  merely  because  it  does  not 
state  the  particular  tax  or  assessment,  nor  the  time  of  payment,  nor  the  person  to 
whom  the  payment  is  to  be  made.  "That  is  certain  which  is  capable  of  being  ren- 
dered certain." 


KECTOR,   4c,   OF   TRINITY   CHURCH   v.    HIGGINS.  503 

Tarties  have  the  right  to  make  all  lawful  contracts  guarding  their  rights  and  securing  the 
performance  of  their  intentions,  including  that  of  contravening  the  rule  of  actual 
compensation  for  actual  loss,  and  when  the  words  of  a  contract  clearly  express  such 
an  intent,  the  courts  will  enforce  it. 

Appeal  from  an  order  of  the  Superior  Court  of  the  city  of  New 
York,  setting  aside  a  verdict  for  the  plaintiffs,  and  granting  a  new 
trial. 

The  plaintiffs  leased  to  the  defendant  certain  premises  in  New  York 
city  for  a  term  of  twenty-one  years,  beginning  May  1,  1S56.  The 
lease  contained  a  covenant  that  the  defendant  would  "  bear,  pay  and 
discharge  all  such  duties,  taxes,  assessments  and  payments,  of  what 
nature  or  kind  soever,  as  should,  during  the  term  aforesaid,  be  im- 
posed on,  or  grow  due  or  payable  out  of  or  for  or  by  reason  of  the 
said  demised  premises,  or  any  part  or  parcel  thereof." 

In  March,  1859,  the  city  authorities  imposed  upon  the  premises 
two  assessments,  for  the  expenses  of  widening  and  extending  Reade 
street,  which  together  amounted  to  $4,875,  and  constituted  liens  upon 
the  property.  When  this  action  was  brought,  in  1863,  neither  of 
these  assessments  had  been  paid,  and  it  did  not  appear  that  the  corpo- 
ration of  the  city  of  New  York  had  taken  any  measures  to  enforce 
their  collection. 

On  the  trial,  at  the  close  of  the  evidence,  the  defendant  moved 
that  the  complaint  be  dismissed,  on  the  ground  that,  as  the  plaintiffs 
had  not  paid  the  assessments,  they  had  failed  to  show  that  they  had 
sustained  any  damage.  The  motion  was  denied,  and  the  defendant's 
counsel  excepted.  The  court  then  directed  the  jury  to  tind  a  verdict 
for  the  plaintiffs  for  $8,000,  subject  to  an  adjustment  of  the  amount, 
and  directed  the  exceptions  to  be  heard  in  the  first  instance  at  the 
general  term. 

It  was  stipulated  that  upon  this  appeal  the  argument  should  1  »e 
confined  to  the  question  of  the  plaintiffs'  right  to  bring  their  action 
before  paying  the  assessments  in  question. 

Leonard,  C. — The  covenant  of  the  defendant  is  affirmative  and 
positive,  not  collateral  or  secondary,  in  its  terms.  He  covenants  to 
"  bear,  pay  and  discharge  all  taxes  and  assessments,"  &c,  as  an  obli- 
gation or  debt  of  his  own,  and  the  language  conveys  no  idea  that  the 
plaintiffs  are  first  to  bear  and  pay,  before  the  demand  becomes  obli- 
gatory upon  the  defendant  for  payment. 

The  covenant  is  broken  when  the  defendant  neglects  to  pay  taxes 
or  assessments  duly  imposed.  The  defendant  is  not  at  liberty  to  say 
that  it  is  the  debt  of  the  plaintiffs;  let   them   first  pay  it,  and  1   will 


504  VARIOUS   COVENANTS. 

then  pay  them.  It  is  his  own  debt,  made  so  by  the  terms  of  his  cov- 
enant. 

The  distinction  between  a  covenant  or  promise  whereby  the  de- 
fendant makes  the  amount  to  be  paid  his  own  debt,  and  one  simply 
of  indemnity  whereby  the  covenant  or  promise  is  not  broken  until 
the  amount  has  been  paid  by  the  plaintiff,  pervades  all  the  cases  upon 
this  subject,  from  the  case  of  Jackson  v.  Port  (17  Johns.  479),  when 
the  rule  became  somewhat  settled  and  defined,  until  that  of  Gilbert 
v.  Wiman  (1  N.  Y.  550). 

The  former  case  has  been  repeatedly  approved  by  the  highest 
courts  of  this  State.  In  the  case  of  Gilbert  v.  Wiman  {supra),  it  is 
said  by  Judge  Gardiner,  delivering  the  opinion  of  the  court,  that 
"  the  distinction  is  very  important.  *  *  *  It  is  the  distinction 
between  an  affirmative  covenant  for  a  specific  tiling,  and  one  of  in- 
demnity against  damage  by  reason  of  the  thing  specified.  The  ob- 
ject of  both  may  be  to  save  the  covenantee  from  damages,  but  their 
legal  consequences  to  the  parties  are  essentially  different."  The 
opinion  further  proceeds  to  illustrate  how  a  bond  or  other  instrument, 
designed  for  indemnity  only,  may,  by  its  terms,  create  an  immediate 
liability  for  the  measure  of  damages  to  which  the  claim  subjected  the 
obligee,  although  not  previously  paid  by  him.  The  cases  of  Thomas 
v.  Allen  (1  Hill,  145),  and  Churchill  v.  Hunt  (3  Denio,  321),  are  cited 
with  approval. 

The  language  of  Justice  Beardsley,  in  the  last-mentioned  case,, 
that  upon  obligations  of  this  sort  the  right  of  action  becomes  com- 
plete on  the  defendant's  failure  to  do  the  particular  thing  he  agreed 
to  perform,  is  commended  as  an  obvious  truth.  Jackson  v.  Port 
(supra)  was  an  action  upon  a  covenant  by  the  defendant,  as  assignee 
of  a  lease  executed  to  the  plaintiff,  that  the  defendant  would  perform, 
fulfill  and  keep  all  the  covenants,  conditions,  provisos,  payments  and 
agreements  mentioned  in  the  lease  on  the  part  of  the  plaintiff  to  be 
paid,  done  or  performed.  One  question  discussed  was  whether  the 
plaintiff  should  recover  nominal  damages  only,  or  the  amount  of  rent 
due,  it  being  conceded  that  the  plaintiff  had  not  paid  any  part  of  the 
rent.  Justice  Yan  Ness  said,  in  the  Supreme  Court  (p.  245) :  "  My 
opinion  is  that  the  latter  (the  rent)  is  recoverable.  The  covenant  is 
not  that  the  defendant  shall  indemnify  the  plaintiff  against  his  own 
covenant  in  the  lease,  or  against  any  damages  which  he  may  sustain, 
but  it  is  express  and  positive." 

Chancellor  Kent  said,  in  the  same  case,  on  appeal  to  the  Court  of 
Errors  (17  Johns.  482) :  "  Where  a  defendant  has  undertaken  to  do 
an  act  in  discharge  of  the  plaintiff  from  such  a  bond  or  covenant,  he 


RECTOR,   Ac,   OF   TRINITY   CHURCH   v.   IIIGGINS.  505 

must  show,  especially,  matter  of  performance;  and  this  Jackson 
ought  to  have  shown  in  this  case.  But  where  the  defendant  has  un- 
dertaken to  acquit  and  discharge  the  plaintiff  from  any  damages,  by 
reason  of  his  bond  or  covenant,  he  then  merely  undertakes  to  indem- 
nify and  save  harmless,  and  the  plaintiff  is  then  bound  to  show  his 
damages.  *  *  *  Port  was  not  bound  to  pay  the  rent  or  have  it 
recovered  from  him  by  due  course  of  law,  before  he  could  resort  to 
Jackson.  He  was  not  bound  to  submit  himself  to  such  previous  dis- 
tress or  inconvenience.  *  *  *  If  Jackson  suffers  the  rent  to  be 
previously  collected  from  Port,  that  would  surely  not  be  keeping  and 
performing  Port's  covenant,  as  he  had  engaged  to  do." 

The  rule  may  be  definitely  drawn  from  numerous  cases,  that 
where  indemnity  only  is  expressed,  damages  must  be  sustained  before 
a  recovery  can  be  had  ;  but  a  positive  agreement  to  do  an  act  which 
is  to  prevent  damage  to  the  plaintiff,  will  sustain  an  action  where  the 
defendant  neglects  or  refuses  to  do  such  act.  (Jackson  v.  Port,  17 
Johns.  239,  479  ;  In  the  Matter  of  Negus,  7  Wend.  501  ;  Chace  v. 
Hinman,  8  Id.  453  ;  Mann  v.  Eckford's  Ex'rs,  15  Id.  502,  514 ;  Webb 
v.  Pond,  19  Id.  423  ;  Thomas  v.  Allen,  1  Hill,  145  ;  Aberdeen  v. 
Blackmar,  6  Id.  324  ;  Churchill  v.  Hunt,  3  Demo,  321 ;  Gilbert  v. 
Wiman,  1  K  Y.  550  ;  Cady  v.  Allen,  22  Barb.  388 ;  McGee  v.  Roen, 
4  Abb.  Pr.  R.  8  ;  Schott  v.  Schwartz,  MSS.,  Com.  of  Appeals,  Janu- 
ary, 1872  ;  Sedgwick  on  Damages,  3<»3-314,  marg.) 

I  am  aware  that  the  author  of  the  treatise  on  Damages,  just  re- 
ferred to,  attempts  to  undermine,  while  he  concedes  that  the  rule  is 
as  it  has  been  here  stated,  and  as  it  is  repeated  in  several  cases  men- 
tioned in  the  text  or  referred  to  by  the  subjoined  notes.  The  author 
says  it  is  somewhat  in  conflict  with  the  important  and  fundamental 
rule  that  actual  compensation  will  not  be  given  for  merely  probable 
loss,  and  he  further  asserts  that  the  argument,  that  the  party  must  be 
held  in  the  full  amount  because  he  has  bound  himself  to  do  a  particu- 
lar act,  is  of  no  great  weight. 

In  my  humble  opinion,  the  observation  is  not  warranted.  Parties 
have  the  just  right  to  make  all  lawful  contracts  guarding  their  rights 
and  securing  the  performance  of  their  intentions,  including  that  of 
contravening  the  rule  of  actual  compensation  for  actual  loss ;  and 
when  expressed  in  apt  and  suitable  language,  it  would  be  flagrant 
wrong  if  courts  of  justice  should  assume  to  disregard  it,  in  favor  of 
some  technical  rule  framed  for  other  and  wholly  different  circum- 
stances. I  think  it  a  sound  and  wholesome  rule  to  construe  a  lawful 
contract  according  to  its  plainly  expressed  meaning,  being  governed 


506  VARIOUS   COVENANTS. 

also  by  the  rules  of  construction  which  have  been  established  by  pre- 
cedents.* 

It  is  urged  by  the  counsel  for  the  defendant  that  the  covenant 
should  be  construed  to  be  for  indemnity  merely,  because  neither  the 
particular  tax  or  assessment,  nor  the  time  of  payment,  nor  the  person 
or  corporation  to  whom  payable,  are  stated  in  the  covenant  of  the  de- 
fendant. The  covenant  appears  to  be  specific  and  certain  without 
these  particulars.  That  is  certain  which  is  capable  of  being  rendered 
certain.  The  covenant  is  to  pay  all  such  taxes  and  assessments  as 
shall  be  imposed  during  the  term  mentioned  in  the  lease.  Before  the 
action  was  brought,  the  assessments  for  certain  sums  had  been  im- 
posed. Several  years  had  elapsed,  and  the  defendant  had  neglected 
to  pay  them,  according  to  his  covenant.  I  am  unable  to  perceive  that 
the  objection  referred  to  has  been  well  taken. 

The  learned  presiding  justice  of  the  New  York  Superior  Court 
suggests,  in  his  opinion,  that  the  plaintiffs  were  not  personally  respon- 
sible for  the  assessment,  and  therefore  that  they  will  not  necessarily 
be  damnified  by  the  non-payment;  and  he  observes,  non  constat,  that 
they  may  not  prefer  to  abandon  the  lands  rather  than  pay  the  in- 
cumbrance, or,  at  all  events,  may  not  be  damnified  to  the  full  amount 
of  it.  The  presumption  is  rather  violent.  The  premises  were  sub- 
ject to  a  sale  for  the  payment  of  the  assessment,  whereby  they  might 
be  lost.  Assessments,  although  often  large,  as  in  the  present  case,  do 
not  amount  to  a  confiscation,  and  the  premises  are  worth  more  than 
the  tax  or  assessment.  No  evidence  to  the  contrary  appears.  It  is 
notorious  that  the  premises  were  largely  enhanced  in  value  by  the 
improvements  for  which  the  assessments  were  imposed,  but  evidence 
of  that  fact  was  not  material,  and  the  contrary  or  opposite  conclusion 
ought  not  to  be  assumed  as  a  fact.  It  was  doubtless  to  guard  against 
the  contingency  of  a  sale  of  the  premises  by  the  city  corporation,  to 
obtain  payment  of  the  sums  assessed,  that  the  covenant  was  inserted 
in  the  lease.  The  sale  of  the  premises  would  involve  a  loss  of  the 
security  for  the  rent  reserved,  and  probably  of  the  reversion.  It  is 
j>erhaps  superfluous  to  discuss  the  question  of  the  liability  of  the 
plaintiffs  for  the  amount  of  the  assessments,  but  I  think  a  different 

*  A  note  to  the  sixth  edition  of  Sedgwick  on  D. images  (Note  2,  p.  371),  relating  to  the 
criticism  of  the  learned  commissioner,  contains  the  following  paragraph  : 

"  Perhaps  it  may  be  proper  to  say  that  the  author's  observations  are  directed  to  the 
question  of  the  measure  of  the  recovery  simply,  in  case  of  the  breach  of  a  contract  to  do 
a  particular  act,  or  make  a  specified  payment ;  and  that  a  criticism  implying  that  he  de- 
nies that  parties,  if  they  choose  and  if  they  distinctly  so  express  themselves,  may  make 
or  should  rightfully  be  at  liberty  to  make  a  "lawful"  contract,  providing  for  a  compen- 
sation exceeding  the  loss  sustained,  is  hardly  justified  by  the  language  of  the  text." 


SCHELL   v.   PLUMB.  507 

rule  from  that  suggested  by  the  presiding  justice  has  been  held  by  the 
Court  of  Appeals  (The  Mayor  v.  Colgate,  12  N.  Y.  140).  The  de- 
fendant in  that  case  was  held  to  be  personally  liable  for  the  sum  as- 
sessed as  upon  a  judgment,  although  more  than  six  years  had  run  be- 
fore the  commencement  of  the  action. 

The  hardship  and  risk  attending  the  recovery  of  a  judgment, 
without  prepayment  of  the  sum  by  the  covenantee,  has  been  com- 
mented upon.  This  objection  is  not  substantial.  The  defendant  can 
make  the  payment  to  the  city  authorities  even  after  judgment,  and  a 
court  of  law  is  vested  with  such  equitable  power  that,  upon  applica- 
tion after  such  payment,  proceedings  for  the  collection  of  the  judg- 
ment, except  as  to  the  costs,  would  be  stayed,  and,  upon  payment  of 
the  costs,  satisfaction  of  the  judgment  would  be  ordered. 

The  order  of  the  General  Term  should  be  reversed,  and  the  Su- 
perior Court  be  directed  to  adjust  the  amount  due  upon  the  assess- 
ment against  the  premises,  and  render  judgment  for  the  plaintiffs 
upon  the  verdict  of  the  jury,  with  the  costs  of  this  appeal  and  of  the 
action. 

All  concur. 

Order  reversed,  and  judgment  in  accordance  with  opinion. 


Final  Breach  of  Continuing  Covenant  to  Support  Another  ; 
Prospective  Expense  ;  Competency  of  Northampton  Tables 
as  Evidence  of  the  probable  Duration  of  Life. 


COURT    OF    APPEALS,    NEW    YORK. 

[1874.]      Schell  v.  Plumb,  Executor,  (55  IS".  Y.  592). 

In  the  case  of  the  total  breach  of  an  entire  contract  by  one  person  to  support  another  for 
life,  the  injured  party  has  a  right  to  recover  an  equivalent  in  damages,  which  equiv- 
alent is  the  value  of  the  contract  to  that  party  at  the  time  of  the  breach.  Full  and 
final  damages,  in  such  a  case,  may  be  recovered  for  the  future  as  well  as  the  past, 
and  whether  the  contract  is  under  seal  or  by  paroL 

The  Northampton  tables  are  proper  evidence  to  show  the  probable  duration  of  a  life. 

This  was  an  appeal  to  the  Court  of  Appeals  of  New  York,  from 
the  judgment  of  the  Supreme  Court  of  the  State. 

The  action  was  brought  to  recover  damages  for  the  breach,  by 
the  defendant's  testator,  of  a  parol  contract  to  support  the  plaintiff 
for  her  life. 

The  contract  was  in  1859.  Ten  years  later,  the  defendant'.-  tes- 
tator turned  the  plaintiff  away  and  refused  to  provide  for  her. 

A  table  of  life  annuities  from  the  Northampton  tables  was,  under 
the  defendant's  objection  and    exception,  admitted  in  evidence  as 


508  VARIOUS  COVENANTS. 

testimony,  to  show  the  probable  duration  of  the  plaintiff's  life  from 
the  time  of  the  breach  of  the  contract. 

The  following  is  a  portion  of  the  judge's  charge  at  the  trial : 

"  If  you  find  she  (plaintiff)  was  turned  out  in  violation  of  the 
contract,  without  any  misconduct  on  her  part,  then  a  cause  of  action 
is  established,  and  your  verdict  must  be  for  the  plaintiff. 

"  And  the  only  question  remaining  for  your  consideration  would 
be  the  amount  of  damages  which  she  should  recover  for  this 
breach  of  contract.  You  will  first  consider  the  amount,  if  any, 
that  she  should  recover  as  damages  for  the  period  prior  to  this 
time.  She  was  turned  away,  if  at  all,  about  the  1st  of  May,  1869, 
three  years  ago,  and  over  three  years  has  elapsed  since  she  left 
his  house.  How  much,  if  anything,  should  she  recover  for  those 
three  years? 

"  If  she  has  been  able,  from  the  time  she  was  turned  from  his 
house  to  the  present  time,  to  support  herself  by  her  own  earnings, 
then  she  has  sustained  no  damages  up  to  this  time,  and  nothing 
would  be  recoverable,  because  actual  damages  must  be  shown.  But 
if  she  has  not  sustained  herself  by  her  own  earnings,  then  you  may 
allow  her  what  difference  there  is  between  her  own  earnings  and  the 
value  of  her  support  from  that  day  to  this,  taking  into  consideration 
the  time  when  she  was  sick,  the  time  when  she  was  well,  the  labor 
that  she  performed,  and  the  value  of  her  services,  and  whether 
the  value  of  her  services  were  sufficient  to  more  than  support  her 
or  not. 

"  A  more  delicate  question  for  your  determination  is  :  How 
much  should  be  allowed  her  as  damages  for  her  future  support  and 
maintenance  ?  Your  verdict  is  all  she  can  ever  recover,  no  matter 
how  long  she  may  live.  That  ends  the  contract  between  these  par- 
ties, and  you  will  decide,  considering  her  age,  her  health,  her  condi- 
tion in  life,  and  the  circumstances  under  which  she  is  placed,  how  long 
she  will  probably  live,  and  how  much  services  she  can  probably  per- 
form in  the  future,  and  say  how  much  more  it  will  cost  her  to  support 
herself  than  she  will  be  able  to  earn,  and  allow  her  to  recover  for 
such  sum." 

The  defendant's  counsel  excepted  to  the  foregoing  portion  of  the 
charge. 

Grover,  J. — The  contract  of  the  testator  to  support  the  plaintiff 
during  her  life,  and  his  violation  thereof,  are  found  by  the  verdict. 
The  judge  held  that  upon  these  facts  the  plaintiff  was  entitled  to 
recover,  not  only  the  expense  of  her  support  to  the  commencement 
of  the  action,  but  the  entire  amount  of  such  expense  during  her  life. 


SCHELL   v.   PLUMB.  500 

To  this  the  defendants  excepted,  insisting  that  if  the  plaintiff  was 
entitled  to  recover  at  all,  she  could  only  recover  for  the  time  prior 
to  the  commencement  of  the  action,  or,  at  most,  to  the  time  of  the 
trial.  Upon  this  question  the  authorities  are  somewhat  conflicting  ; 
hut  an  examination  satisfies  me  that  the  rule  adopted  by  the  judge  is 
sustained  by  those  best  considered.  Fish  v.  Foley  (6  Hill,  54)  was 
an  action  upon  a  covenant  of  the  defendant's  intestate  with  the 
plaintiff  to  furnish  him  with  sufficient  water  from  the  intestate's 
mill  dam  to  carry  his  fulling  mill  and  carding  machine,  unlimited  in 
duration.  It  was  held  that  a  previous  action  in  which  damages  were 
recovered  up  to  the  commencement  of  the  action,  was  a  bar  to  a  sub- 
sequent action  for  breaches  after  the  commencement  of  the  former 
action.  Nelson,  C.  J.,  says  in  the  opinion,  that  the  covenant  stipu- 
lated for  a  continued  supply  of  water  to  the  plaintiff's  mills,  and  in 
this  respect  may  be  appropriately  styled  a  continuing  contract ;  yet, 
like  any  other  entire  contract,  a  total  breach  put  an  end  to  it  and 
gave  the  plaintiff  a  right  to  sue  for  an  equivalent  in  damages.  He 
obtained  that  equivalent,  or  should  have  obtained  it,  in  the  former 
suit.  This  is  in  principle  precisely  analogous  to  the  present  case. 
Here  the  contract  of  the  testator  was  to  support  the  plaintiff  during 
her  life.  That  was  a  continuing  contract  during  that  period,  but  the 
contract  was  entire  and  a  total  breach  put  an  end  to  it,  and  gave  the 
plaintiff  a  right  to  recover  an  equivalent  in  damages,  which  equiva- 
lent was  the  present  value  of  her  contract.  Shaffer  v.  Lee  (8  Bar- 
bour, 412)  was  an  action  upon  a  bond  conditioned  to  furnish  the 
obligee  and  his  wife  with  all  necessary  meat,  etc.,  during  both  and 
each  of  their  lives.  It  was  held  to  be  an  entire  contract,  and  that  a 
failure  to  provide  according  to  the  substance  and  spirit  of  the  cove- 
nant amounted  to  a  total  breach,  and  that  full  and  final  damages 
might  be  recovered  for  the  future  as  well  as  the  past.  It  is  obvious 
that  the  right  to  recover  a  full  equivalent  upon  a  breach  is  the  same 
when  the  contract  is  by  parol  as  when  it  is  evidenced  by  an  instru- 
ment under  seal.  Dresser  v.  Dresser  (35  Barb.  573)  was  upon  a  like 
contract  by  parol,  and  it  was  held  that  upon  a  breach  the  entire  dam- 
ages might  be  recovered. 

The  counsel  for  the  appellants  insists  that  such  cannot  be  the 
rule,  for  the  reason,  as  he  insists,  that  it  is  impossible  to  ascertain 
the  damages,  as  the  duration  of  life  is  uncertain,  and  a  further  un- 
certainty arising  from  the  future  physical  condition  of  the  person. 
Guthrie  v.  Pugsley  (12  Johns.  126),  and  "Wager  v.  Schuyler  (1  Wend. 
553),  show  that  the  former  reason  has  no  force.  In  each  of  these 
cases  the  value  of  a  life  estate  in  real  estate  was  determined  in  ac- 


510  VARIOUS  COVENANTS. 

tions  upon  the  breach  of  covenants  of  warranty,  as  to  which  the  un- 
certainty as  to  the  duration  of  life  was  the  same  as  in  the  present 
case.  It  may  be  further  remarked,  that  in  actions  for  personal 
injuries  the  constant  practice  is  to  allow  a  recovery  for  such  pro- 
spective damages  as  the  jury  are  satisfied  the  party  will  sustain, 
notwithstanding  the  uncertainty  of  the  duration  of  his  life  and  other 
contingencies  which  may  possibly  affect  the  amount.  The  counsel 
for  the  appellants,  cites  cases  where  it  has  been  held  that,  in  actions 
for  a  continuing  injury  to  real  estate,  damages  can  only  be  recovered 
to  the  commencement  of  the  action,  and  that  subsequent  actions  may 
be  brought  for  damages  sustained  thereafter.  This  is  the  undoubted 
rule  in  this  class  of  actions,  but  has  no  application  to  actions  upon 
contracts  which  are  entire.  Cases  are  also  cited  applying  the  same 
rule  in  actions  upon  covenants  to  repair.  Beach  v.  Crain  (2  Com- 
stock,  86)  was  of  the  latter  class.  Ferguson  v.  Ferguson  (Id.  360) 
was  a  case,  as  [appears  from  the  facts  stated,  of  a  partial  and  not 
total  breach  of  the  contract,  in  which  it  was  correctly  held  that 
a  recovery  could  only  be  had  for  the  partial  breaches  that  had 
occurred. 

An  exception  was  taken  by  the  counsel  to  the  reception  of  the 
Northampton  tables  as  evidence  tending  to  show  the  probable  dura- 
tion of  the  life  of  the  plaintiff.  It  may  be  remarked,  that  the  ob- 
jection thereto  was  general,  not  based  upon  the  want  of  preliminary 
proof  showing  their  genuineness  or  want  of  identity  with  those  long 
in  use  by  insurance  companies  and  courts  for  this  purpose.  These 
tables  were  used  by  the  Supreme  Court  in  Wager  v.  Schuyler  (1 
Wend.  553),  for  this  very  purpose,  in  an  action  of  covenant,  where 
the  probable  duration  of  life  was  determined  by  the  court  in  this 
way,  upon  a  verdict  subject  to  the  opinion  of  the  court.  That  they 
have  been  long  so  used  by  the  Court  of  Chancery  in  this  State,  and 
courts  of  equity  in  England,  is  too  well  known  to  require  any  cita- 
tion of  cases.  They  have  been  adopted  by  a  rule  of  the  Supreme 
Court  for  this  purpose  (Rule  85).  It  would  be  singular  indeed  if, 
under  these  facts,  they  were  to  be  held  inadmissible,  when  the  same 
fact  was  to  be  determined  by  a  jury.  They  were  competent  in 
connection  with  the  proof  given  as  to  the  health,  constitution  and 
habits  of  the  plaintiff.  No  complaint  is  made  of  the  charge  in 
this  respect. 

There  was  no  error  in  refusing  to  charge,  as  requested,  that  if 
the  jury  found  that  the  contract  was  to  furnish  the  plaintiff  a  home 
in  the  family  of  the  testator  and  support  her,  then  the  obligation  of 


CUTLER   v.   HOW.  511 

the  contract  terminated  at  the  death  of  the  testator.  The  evidence, 
if  proving  a  contract  at  all,  showed  that  it  was  to  support  the  plaint- 
iff during  her  life. 

The  judgment  appealed  from  must  be  affirmed,  with  costs. 

All  concur. 

Judgment  affirmed. 


UNCONSCIONABLE   CONTRACTS. 

Unconscionable  Contract. 


SUPREME    COURT,    NEW    HAMPSHIRE. 

[1811.]  Cutler  v.  How  (8  Mass,  257). 

Where  by  the  terms  of  a  contract  the  party  may,  by  payment  at  a  day  certain,  avoid  any 
stipulated  penalty,  such  contract  is  not  usurious.  If  the  contract  is  unconscionable, 
what  is  fairly  due  only  will  be  allowed. 

The  action  was  assumpsit  on  a  promissory  note,  made  by  the 
defendant,  and  bearing  date  the  17th  day  of  April,  1809,  by  which 
he  promised  the  plaintiff  to  pay  and  deliver  to  him  nine  hundred 
and  twenty-eight  bushels  of  oats  by  the  7th  day  of  October  then 
next. 

At  the  trial,  which  was  had  on  the  general  issue,  before  the  Chief 
Justice,  at  the  sittings  at  the  last  October  term  in  this  county,  the 
plaintiff  proved  the  making  of  the  note.  The  defense  was  usury  and 
fraud  in  obtaining  it ;  and  to  maintain  this  defense,  the  defendant 
proved  that  the  plaintiff,  having  a  few  days  before  the  date  of  the 
note  recovered  judgment,  and  sued  out  execution  against  the  de- 
fendant for  the  sum  of  $176  06  damages  and  costs,  requested  a 
deputy  sheriff  to  take  the  execution,  and  to  compel  the  defendant  to 
pay  the  amount  due  in  cash  in  four  days,  which  the  deputy  sheriff 
refused  to  do.  The  plaintiff  then  told  the  deputy  sheriff  he  might 
take  the  execution,  if  he  would  compel  payment  in  ten  days,  which 
he  also  refused.  The  plaintiff  then  went  to  the  defendant  with  the 
execution,  to  settle  it  with  him,  and  proposed  to  discharge  the  execu- 
tion, if  the  defendant  would  give  him  his  note  for  the  amount  due 
upon  it,  payable  in  oats  at  twenty  cents  the  bushel  by  the  7th 
of  the  then  next  October,  reckoning  as  part  of  the  amount  what 
would  be  the  sheriff's  fees  for  levying  the  execution,  estimated  at 


512  UNCONSCIONABLE   CONTRACTS. 

$8  54.  And  he  further  stipulated  that  if  the  defendant  would 
give  such  note,  he  would  discount  upon  the  note  five  bushels  of  oats 
for  each  silver  dollar  paid  thereon,  if  the  defendant  should  pay  one 
half  in  thirty  days,  and  the  other  half  in  sixty  days.  On  these  terms 
the  defendant  made  the  note,  which  is  the  same  that  is  declared  on. 
On  the  23d  day  of  May  next  after  the  date  of  the  note,  the  defend- 
ant paid  one  hundred  silver  dollars  to  the  plaintiff,  pursuant  to  the 
said  agreement,  which  he  indorsed  upon  the  note  in  lieu  of  five  hun- 
dred bushels  of  oats.  The  defendant  further  proved  that  oats  had 
not  been  known  at  Hopkinton,  where  the  parties  live,  to  have  been 
lower  that  33  cents  the  bushel  for  many  years  past ;  and  when  the 
note  declared  on  was  made,  they  were  not  lower  than  37  cents  the 
bushel. 

On  these  facts,  the  defendant  insisted  that  the  contract  was  not 
merely  unconscionable,  but  was  at  law  usurious  and  void. 

The  Chief  Justice,  desirous  to  save  the  question,  directed  the  jury 
that  they  might  consider  the  contract  as  unconscionable,  and,  in  as- 
sessing the  damages,  might  value  the  oats  at  20  cents ;  and  they 
found  a  verdict  accordingly,  including  all  the  oats  not  indorsed  or 
paid. 

If,  upon  the  foregoing  facts,  it  should  be  the  opinion  of  the  court 
that  the  note  was  in  law  usurious  and  void,  the  verdict  was  to  be  set 
aside,  and  a  new  trial  granted. 

The  motion  to  set  aside  the  verdict  having  been  argued,  the 
court  held  that  including  the  $8  54  in  the  note  was  oppressive, 
but  from  the  facts,  as  reported,  it  did  not  appear  to  have  been  taken 
as  usurious  interest.  By  the  terms  of  the  contract,  the  defendant 
might,  by  making  payment  in  thirty  and  sixty  days,  have  avoided 
everything  but  the  discharge  of  what  was  honestly  due  from  him,  for 
which  the  note  was  given  as  security.  It  was  not  then  void  as  an 
usurious  contract.  The  verdict  relieved  the  defendant  from  every- 
thing oppressive  in  the  contract,  except  the  sum  included  as  the  offi- 
cer's fees.  That  sum  was  directed  to  be  deducted  from  the  amount 
found  by  the  verdict,  and  judgment  to  be  entered  on  the  verdict  so 
amended. 


DURST   v.   BURTON.  513 

MARKET  VALUE. 

Sale;  Fraud  of  Agent;  Market  Value,  how  Shown. 


COURT    OF   APPEALS,    NEW    YORK. 

[1872.]  Durst  v.  Burton  (47  N.  Y.  1G7). 

The  rule  of  damages  in  the  case  of  contracts  of  sale  and  delivery  of  an  article  which 
proves  not  to  conform  to  the  representation  of  it,  is  the  difference  between  its  actual 
va'ue  at  the  place  of  delivery,  and  what  such  value  would  be  at  that  place  if  the 
representation  were  true.  The  value  at  another  time  and  place  is  not  material 
unless  it  tends  to  prove  the  value  at  that  time  and  place. 

Appeal  to  the  Court  of  Appeals  of  New  York,  from  a  judgment 
in  the  Supreme  Court  of  the  State. 

The  action  was  to  recover  damages  for  an  alleged  fraud  in  the 
sale  of  a  considerable  quantity  of  cheese.  The  cheese  was  sold  by  the 
defendant  to  the  plaintiff,  on  or  about  the  8th  of  August,  1866,  and 
represented  by  the  owners  to  be  of  good  quality. 

Owing  to  a  fraud  in  the  manufacture,  by  which  sour  curds  were 
put  in  the  midst  of  cheeses  made  from  sweet  curds,  the  cheese  was 
very  inferior  to  the  quality  represented. 

It  was  delivered  in  Frankfort,  where  it  was  made,  but  New  York 
was  the  market  to  which  it  was  to  be  forwarded,  as  provided  by  the 
contract. 

Such  further  facts  as  are  material,  appear  in  the  opinion  of  the 
court. 

Church,  Ch.  J.,  in  delivering  the  opinion  of  the  court,  after 
holding  that  the  defendants,  having  assumed  the  responsibility  of  the 
business  as  to  the  public,  were  liable  for  the  fraud  and  misconduct  of 
their  agents,  proceeded  as  follows  : 

The  court  rejected  the  off er  of  the  defendants  to  prove,  in  sub- 
stance, that  the  cheese  was  shipped  to  and  sold  in  the  London  mar- 
ket, and  netted  the  plaintiff  sixteen  and  a  half  cents  a  pound,  and  that 
the  cheese  market  in  New  York  is  regulated  and  controlled  mainly 
by  the  price  of  cheese  in  London  and  Liverpool.  The  defendants  ex- 
cepted to  this  ruling,  and  now  claim  that  it  was  error.  The  rule  of 
damages  in  such  cases  is  the  difference  between  the  value  of  the 
article,  if  sound,  or  as  represented,  and  the  value  as  it  was  at  the  time 
and  place  of  delivery  (12  N.  Y.  40).  The  place  of  delivery  was 
33 


514  MARKET  VALUE. 

Frankfort,  but  by  the  terras  of  the  contract,  New  York  was  the  mar- 
ket to  which  it  was  to  be  forwarded,  and  where  it  was  to  be  sold,  and 
the  market  price  there  may  be  regarded  as  within  the  contemplation 
of  the  parties.  The  damages  accrued  immediately,  as  fixed  by  the 
rule  above  stated. 

It  follows,  that  the  value  at  another  place  or  at  another  time 
would  not  be  material  unless  it  tended  to  prove  the  value  at  that  time 
and  place.  A  reasonable  range  of  time  is  sometimes  allowed  in  which 
to  average  the  price,  so  that  sudden,  unnatural  and  spasmodic  values, 
not  indicating  the  real  state  of  the  market,  may  not  prevail  (3  Hill, 
333).  So  the  price  at  other  places  may  be  shown,  under  some  circum- 
stances, for  the  purpose  of  proving  the  value  at  the  designated  place 
(22  Barb.  154).  And  to  some  extent  this  class  of  evidence  is  within 
the  discretion  of  the  court.  Where  the  evidence  is  clear  and  explicit 
at  the  place  of  delivery,  the  value  at  other  places  is  not  strictly  com- 
petent (8  Wend.  435).  Nor  was  it  material  whether  the  plaintiff  ac- 
tually realized  more  or  less  because  the  result  of  his  final  disposition 
of  it  might  be  produced  by  contingencies  entirely  foreign  to  the  prin- 
ciple upon  which  the  rule  rests.  The  only  possible  relevancy  of  the 
proposed  proof  was  its  legitimate  bearing  upon  the  value  of  the 
cheese  in  New  York  on  the  eleventh  day  of  August,  and  a  majority 
of  the  court  think  it  was  properly  rejected  for  the  reason  :  First, 
that  there  was  explicit  proof  of  the  value  of  the  cheese  in  New 
York.  Second,  the  evidence  offered  tended  not  to  prove  the  value 
at  the  time,  but  a  considerable  period  afterwards.  Third,  the  offer 
should  have  negatived  any  material  change  in  the  price  up  to  the 
time  of  the  sale  in  London,  and  should  have  embraced  the  circum- 
stances if  they  existed,  which,  presumptively,  at  least,  would  repel 
the  idea  of  any  claim  for  reclamation. 

We  have  examined  the  other  exceptions  and  do  not  think  that 
any  of  them  were  well  taken ;  but  as  they  were  not  relied  upon  on 
the  argument,  it  is  unnecessary  to  discuss  them. 

The  judgment  must  be  affirmed  with  costs. 

All  the  judges  concurred  in  the  foregoing  opinion ;  Allen,  J.,, 
who  had  been  of  counsel  in  the  case,  not  voting. 

Judgment  affirmed. 


KOUNTZ   v.   KIRKPATRICK.  515 


Sale  of  Chattels  ;   jSTox-Deliyery  ;  Artificial  Market  Yalue. 


SUPREME   COURT,    PENNSYLVANIA. 

1872  ]        Kountz  v.  Kirkpatrick  (72  Perm.  St.  [22  P.  F. 

Smith],  376). 

In  the  sale  of  chattels  the  general  rule  i9,  that  the  measure  of  damages  for  non-delivery 

is  the  difference  between  the  contract  price  and  the  price  at  the  time  and  place  of 

delivery. 
When  the  market  price  is  unnaturally  inflated  by  unlawful  means,  it  is  not  the  true 

means  of  ascertaining  the  measure  of  damages  for  non-delivery. 
The  question  of  damages  by  a  market  value  is  for  the  jury,  who  may  determine  from 

the  price  before   and  after  the  day  of  delivery,  and  from  other  sources,  the  actual 

market  value. 

November  14th,  1872.  Before  Thompson,  C.  J.,  Read,  Agnew, 
Sharswood  and  Williams,  JJ. 

Error  to  the  Court  of  Common  Pleas  of  Allegheny  County  : 
No.  86,  to  October  Terra,  1872. 

This  was  an  action  of  assumpsit,  brought  August  30th,  1870,  by 
Joseph  Kirkpatrick  and  James  Lyons,  trading  as  Kirkpatrick  ct 
Lyons,  to  the  use  of  Frederick  Fisher  and  others,  trading  as  Fisher 
Brothers,  against  William  J.  Kountz. 

The  claim  was  upon  the  following  memorandum  set  out  in  the 
plaintiff's  affidavit : 

"  Pittsburg,  June  7th,  1869. 

"  Sold  to  Kirkpatrick  &  Lyons  two  thousand  barrels  good,  green 
merchantable  crude  petroleum,  forty  gallons  to  the  barrel,  gravity 
40  to  46  degrees,  at  a  temperature  of  60°  Fahrenheit,  to  be  deliv- 
ered— seller's  option — at  any  time  from  this  date  till  December 
31st,  1869,  in  bulk  cars  or  bulk  boats,  at  Cosmos  Oil  Works.  If 
delivered  by  Allegheny  Yalley  or  Western  Pennsylvania  Railroad, 
the  buyer  may  designate  any  other  point  of  delivery  on  line  of  said 
roads.  If  delivered  by  water,  then  at  any  good  landing  in  or  near 
Pittsburg  buyer  may  direct.  Payment  to  be  made  cash  on  delivery 
at  the  rate  of  thirteen  and  one-half  cents  per  gallon,  on  lots  as 
gauged  and  delivered. 

"W.  J.  Kocntz,  Seller." 

The  affidavit  further  set  out  : 

"  On  the  31st  day  of  December,  18G9,  the  said  defendant  was 
duly  notified  that  the  vendees  of  said  oil  were  ready  and  willing  to 


516  MARKET   VALUE. 

receive  and  pay  for  the  same  according  to  the  terms  of  the  contract, 
and  demand  was  made  of  the  defendant  that  he  deliver  the  said  oil 
according  to  the  provisions  of  said  contract ;  nevertheless  the  de- 
fendant, on  the  day  and  year  last  aforesaid,  refused  to  deliver  said 
oil,  and  never  did  deliver  the  same,  or  any  part  thereof,  although 
the  vendees  were  ready  and  willing  to  receive  and  pay  for  the 
same  according  to  the  provisions  of  said  contract. 

"  On  the  31st  of  December,  1869,  the  market  price  of  oil  of  the 
quality  specified  in  said  contract,  and  at  the  place  of  delivery  therein 
mentioned,  was  18  cents  per  gallon  ;  therefore,  by  reason  of  his  (de- 
fendant's) failure  to  perform  his  said  contract,  the  vendees  of  said 
oil,  on  the  31st  day  of  December,  1869,  sustained  and  suffered  loss 
and  damage  to  the  amount  of  $3,600. 

"  Frederick  Fisher." 

On  the  14th  of  September,  1870,  judgment  was  taken  by  default 
against  the  defendant  for  $3,753.  On  the  22d  of  September,  1870, 
a  rule  was  granted  on  the  plaintiffs  to  show  cause  why  the  judgment 
should  not  be  opened,  and  the  defendant  let  into  a  defense  ;  the 
rule  was  made  absolute  on  the  condition  that  the  defendant,  within 
five  days,  file  "  a  full  and  specific  affidavit  of  defense,  which  shall  be 
subject  to  the  same  rules  of  court  as  if  the  same  had  been  filed 
before  a  judgment  entered." 

The  affidavit  of  defense  was  as  follows  : 

"  That  the  said  plaintiffs,  Kirkpatrick  &  Lyons,  between  the  7th 
of  June,  1869,  and  the  31st  of  December,  1869,  with  others,  entered 
into  a  combination  to  purchase  oil  here  in  the  county  of  Allegheny, 
as  well  as  in  the  oil-producing  districts  of  Pennsylvania  and  West 
Yirginia,  and  keep  it  out  of  the  market  and  thereby  create  a  scarcity, 
and  consequently  enhance  the  price,  for  the  purpose  of  preventing 
this  affiant  (and  others  who  had  entered  into  like  writings  of  the 
character  of  the  one  on  which  this  suit  is  brought)  from  fulfilling 
his  engagement,  set  forth  in  said  writing,  so  that  they  might  reap 
great  gains  and  profits  by  receiving  the  difference  between  the  price 
promised  your  affiant  and  the  advanced  price  brought  on  as  afore- 
said, and  in  furtherance  of  said  illegal  object,  the  said  plaintiffs, 
with  others,  their  confederates,  used  their  influence  and  efforts  to 
prevent  oil  from  being  brought  to  the  city  of  Pittsburg,  from  the 
oil-producing  districts  for  the  purpose  aforesaid ;  and  further,  said 
plaintiffs,  with  their  confederates,  for  the  purpose  of  preventing  this 
affiant  (and  others  who  had  entered  into  like  writings  with  the  one 
sued  on)  from  fulfilling  his  said  engagement ;  and  from  having  oil 
shipped  on  the  Allegheny  Valley  Railroad  to  the  city  of  Pittsburg  from 


KOUNTZ   v.    KIRKPATRICK.  517 

oil-producing  districts  in  the  State  of  Pennsylvania,  monopolized  the 
freight  cars  of  said  road  (the  river,  most  of  the  time,  being  too  low 
to  allow  oil  to  be  transported  by  water  from  the  oil  regions  in  the 
State  of  Pennsylvania  to  said  city  of  Pittsburg),  and  rendered  it 
impossible  for  this  affiant  to  fulfill  his  said  engagement,  as  well  as 
others  of  a  like  kind,  and  said  illegal  proceedings,  actions  and  doings 
of  the  said  plaintiffs  (and  others,  their  confederates),  they,  the  said 
plaintiffs,  and  others,  their  confederates,  did  succeed  in  raising  the 
price  of  oil  between  the  aforesaid  two  dates  from  13£  cents  to  18 
cents  per  gallon,  thereby  to  a  great  extent  contributing  purposely  to 
prevent  this  affiant  from  being  ready  and  prepared  to  deliver  the 
2,000  barrels  of  oil,  mentioned  in  said  writing,  between  the  dates 
aforesaid ;  and  this  affiant  would  further  state  (and  is  prepared  to 
prove),  that  the  fair  market  price  of  oil  (such  as  described  in  said 
contract  sued  on),  on  the  31st  of  December,  1869,  was  considerably 
less  than  18  cents  per  gallon.  This  affiant  expects  to  be  able  to 
prove  the  whole  of  the  foregoing  facts  upon  the  trial  of  this  case, 
and  this  affiant  would  further  aver,  and  expect  to  prove  on  the  trial 
of  this  case,  that  he  would  have  fulfilled  his  contract  had  it  not  been 
for  the  doings  and  actions  of  said  plaintiffs  (and  others,  their  con- 
federates), above  set  forth  ;  and  he  would  further  state,  that  as  soon 
as  the  market  was  relieved  from  the  above  combination,  to  wit, 
within  a  few  days  after  the  31st  of  December,  1869,  he  procured 
and  tendered  oil  in  fulfillment  of  his  said  contract ;  and  he  would 
further  aver  that  the  object  and  intention  of  the  above  combination 
on  part  of  the  said  plaintiffs  (and  others,  their  confederates)  were  to 
thwart  and  prevent  him,  this  defendant,  from  performing  and  ful- 
filling his  said  contract  within  the  time  fixed  in  the  same. 

"  W.  J.  Kountz." 

On  the  trial,  January  9th,  1872,  before  Stekrett,  P.  J.,  the 
plaintiffs  gave  in  evidence  the  record  of  the  previous  proceedings 
in  this  case. 

The  defendant  then  gave  evidence  tending  to  show  that  the  legal 
plaintiffs,  with  a  large  number  of  other  persons,  holding  contracts 
similar  to  that  in  suit  for  the  delivery  of  oil,  entered  into  a  com- 
bination to  raise  the  price  by  buying  up  oil,  holding  it  until  after 
the  last  of  the  year,  for  the  purpose  of  compelling  the  defendant  to 
pay  large  differences  for  non-delivery. 

He  gave  other  evidence  tending  to  sustain  the  allegations  of  his 
affidavit  of  defense,  especially  to  show  that  the  price  of  oil  when 
the  delivery  was  to  have  been  made,  except  that  it  had  been  unnat- 
urally raised  by  the  combination,  was  much  less  than  18  cents.     His 


518  MARKET   VALUE. 

evidence,  amongst  other  things,  was  that  this  combination  had  been 
formed  in  the  early  part  of  October,  1869. 

The  plaintiffs,  in  rebuttal,  gave  evidence,  under  objection  and 
exception,  that  Fisher  Brothers  had  held  the  contract  by  assignment 
from  Kirkpatrick  &  Lyons  since  June  24th,  1869,  and  had  given 
defendant  notice  within  two  weeks  afterwards ;  the  defendant  said 
it  was  all  right.  The  contract  had  been  originally  made  by  them 
for  Fisher  Brothers,  who  had  no  connection  with  the  combina- 
tion, nor  had  they  any  anticipation  of  such  combination  when  the 
assignment  was  made  to  them.  There  was  a  conflict  in  the  evi- 
dence as  to  Fisher  Brothers  having  given  the  defendant  notice  of 
the  transfer. 

Various  requests  to  charge  were  made  by  the  defendant's  coun- 
sel and  passed  on  by  the  presiding  judge,  which  are  not  material 
here.  The  opinion  of  the  court  was  delivered  January  6th,  1873, 
by  Agnew,  J. 

After  holding  that  certain  errors  assigned  by  the  defendant  were 
not  well  assigned,  the  learned  judge  proceeded  as  follows : 

On  the  7th  of  June,  1S69,  Kountz  sold  to  Kirkpatrick  &  Lyons, 
two  thousand  barrels  of  crude  petroleum,  to  be  delivered  at  his  op- 
tion, at  any  time  from  the  date,  until  the  31st  of  December,  1869, 
for  cash  on  delivery,  at  thirteen  and  a  half  cents  a  gallon.  On  the 
21th  of  June,  1869,  Kirkpatrick  and  Lyons  assigned  this  contract  to 
Fisher  &  Brothers.  Kountz  failed  to  deliver  the  oil.  He  defends 
on  the  ground  that  Kirkpatrick  &  Lyons,  and  others  holding  like 
contracts  for  delivery  of  oil,  entered  into  a  combination  to  raise  the 
price,  by  buying  up  large  quantities  of  oil,  and  holding  it  till  the  ex- 
piration of  the  year  1869,  and  thus  to  compel  the  sellers  of  oil  on 
option  contracts,  to  pay  a  heavy  difference  for  non-delivery.  Fisher 
&  Brothers,  the  assignees  of  Kountz's  contracts,  were  not  in  the 
combination,  and  the  principal  questions  are  whether  they  are 
affected  by  the  acts  of  Kirkpatrick  &  Lyons,  subsequent  to  the 
assignment  ;  whether  notice  of  the  assignment  to  Kountz  was 
necessary  to  protect  them,  and  what  is  the  true  measure  of  dam- 
ages. 

The  learned  judge,  after  answering  the  first  two  of  these  ques- 
tions in  the  negative,  continued  as  follows  : 

The  next  question  is  upon  the  proper  measure  of  damages.  In 
the  sale  of  chattels,  the  general  rule  is,  that  the  measure  is  the  dif- 
ference between  the  contract  price  and  the  market  value  of  the 
article  at  the  time  and  place  of  delivery  under  the  contract.  It  is 
unnecessary  to  cite  authority  for  this  well  established  rule,  but  as 


KOUNTZ  v.   KIRKPATRICK.  519 

this  case  raises  a  novel  and  extraordinary  question  between  the  true 
market  value  of  the  article,  and  a  stimulated  market  price,  created 
by  artificial  and  fraudulent  practices,  it  is  necessary  to  fix  the  true 
meaning  of  the  rule  itself,  before  we  can  approach  the  real  question. 
Ordinarily,  when  an  article  of  sale  is  in  the  market,  and  has  a  market 
value,  there  is  no  difference  between  its  value  and  the  market  price, 
and  the  law  adopts  the  latter  as  the  proper  evidence  of  the  value. 
This  is  not,  however,  because  value  and  price  are  really  convertible 
terms,  but  only  because  they  are  ordinarily  so  in  a  fair  market.     The 
primary  meaning  of  value  is  worth,  and  this  worth  is  made  up  of 
the  useful  or  estimable    qualities  of  the  thing  (See  Webster's  and 
Worcester's  Dictionaries).     Price,  on  the  other  hand,  is  the  sum  in 
money  or  other  equivalent  set  upon  an  article  by  a  seller,  which  he 
demands  for  it  (Id.  Ibid.).     Value  and  price  are,  therefore,  not  syno- 
nymes,  or  the  necessary  equivalents  of  each  other,  though  commonly, 
market  value  and  market  price  are  legal  equivalents.     When  we  ex- 
amine the  authorities,  we  find  also  that  the  most  accurate  writers 
use  the  phrase  market  value,  not  market  price.     Mr.   Sedgwick,  in 
his  standard  work  on  the  measure  of  damages,  4th  ed.  p.  260,  says : 
"  Where  contracts  for  the  value  of  chattels  are  broken  by  the  ven- 
dor's failing  to  deliver  property  according  to  the  terms  of  the  bar- 
gain, it  seems  to  be  well  settled,  as  a  general  rule,  both  in  England 
and  the  United  States,  that  the  measure  of  damages  is  the  difference 
between  the  contract  price  and  the  market  value  of  the  article  at  the 
time  it  should  be  delivered  upon  the  ground  ;  that  this  is  the  plaint- 
iff's real  loss,  and  that  with  this  sum,  he  can  go  into  the  market  and 
supply  himself  with  the  same  article  from  another  vendor."      Judge 
Rogers  uses  the  same  term  in  Smethurst  v.  Woolston  (5  W.  &  S. 
109) :  "  The  value  of  the  article  at  or  about  the  time  it  is  to  be  de- 
livered, is  the  measure  of  damages  in  a  suit  by  the  vendee  against  the 
vendor  for  a  breach  of  the  contract."      So  said  C.  J.  Tilghman,  in 
Girard  v.  Taggart  (5  S.  &  R.  32).     Judge  Sergeant,  also,  in  O'Con- 
ner  v.  Forster  (10  Watts,  422),  and  in  Mott  v.  Danforth  (6  Id.  308). 
But  as  even  accurate  writers  do  not  always  use  words  in  a  precise 
sense,  it  would  be  unsatisfactory  to  rely  on  the  common  use  of  a 
word  only,  in  making  a  nice  distinction  between  terms.     It  is  there- 
fore proper  to  inquire  into  the  true  legal  idea  of  damages  in  order  to 
determine  the  proper  definition  of  the  term  value.     Except  in  those 
cases  where  oppression,  fraud,  malice  or  negligence  enter  into  the 
question,  "  the  declared  object "  says  Mr.  Sedgwick,  in  his  work  on 
Damages,  "  is  to  give  compensation  to  the  party  injured  for  the  actual 
loss  sustained"  (1th  ed.  pp.  28,  29;    also,  pp.  36,  37).      Among  the 


520  MARKET   VALUE. 

many  authorities  he  gives,  he  quotes  the  language  of  C.  J.  Shippen,, 
in  Bussy  v.  Donaldson  (4  Dallas,  206) :  "  As  to  the  assessment  of 
damages "  said  he,  "  it  is  a  rational  and  legal  principle,  that  the 
compensation  should  be  equivalent  to  the  injury."  "  The  rule," 
said  C.  J.  Gibson,  "  is  to  give  actual  compensation,  by  graduating 
the  amount  of  the  damages  exactly  to  the  extent  of  the  loss."  "  The 
measure  is  the  actual,  not  the  speculative  loss  "  (Forsyth  v.  Palmer, 
2  Harris,  97).  Thus,  compensation  being  the  true  purpose  of  the 
law,  it  is  obvious  that  the  means  employed,  in  other  words,  the 
evidence  to  ascertain  compensation,  must  be  such  as  truly  reaches, 
this  end. 

It  is  equally  obvious,  when  we  consider  its  true  nature,  that  as 
evidence,  the  market  price  of  an  article  is  only  a  means  of  arriving 
at  compensation ;  it  is  not  itself  the  value  of  the  article,  but  is  the 
evidence  of  value.  The  law  adopts  it  as  a  natural  inference  of  fact, 
but  not  as  a  conclusive  legal  presumption.  It  stands  as  a  criterion 
of  value,  because  it  is  a  common  test  of  the  ability  to  purchase  the 
thing.  But  to  assert  that  the  price  asked  in  the  market  for  an  arti- 
cle is  the  true  and  only  test  of  value,  is  to  abandon  the  proper  object 
of  damages,  viz.,  compensation,  in  all  those  cases  where  the  market 
evidently  does  not  afford  the  true  measure  of  value.  This  thought 
is  well  expressed  by  Lewis,  C.  J.,  in  Bank  of  Montgomery  v.  Reese 
(2  Casey,  146).  "  The  paramount  rule  in  assessing  damages  "  he 
says,  "  is  that  every  person  unjustly  deprived  of  his  rights,  should  at 
least  be  fully  compensated  for  the  injury  he  sustained.  "Where  arti- 
cles have  a  determinate  value  and  an  unlimited  production,  the  gen- 
eral rule  is  to  give  their  value  at  the  time  the  owner  was  deprived  of 
them,  with  interest  to  the  time  of  verdict.  This  rule  has  been 
adopted  because  of  its  convenience,  and  because  it  in  general  answers 
the  object  of  the  law,  which  is  to  compensate  for  the  injury.  In 
relation  to  such  articles,  the  supply  usually  keeps  pace  with  the  de- 
mand, and  the  fluctuations  in  the  value  are  so  inconsiderable  as  to 
justify  the  courts  in  disregarding  them  for  the  sake  of  convenience 
and  uniformity.  In  these  cases,  the  reason  why  the  value  at  the 
time  of  conversion,  with  interest,  generally  reaches  the  justice  of  the 
case,  is  that  when  the  owner  is  deprived  of  the  articles,  he  may  pur- 
chase others  at  that  price.  But  it  is  manifest  that  this  would  not 
remunerate  him  where  the  article  could  not  be  obtained  elsewhere, 
or  where  from  restrictions  on  its  production,  or  other  causes,  its 
price  is  necessarily  subject  to  considerable  fluctuation."  This  shows 
that  the  market  price  is  not  an  invariable  standard,  and  that  the  con- 
verse of  the  case  then  before  Judge  Lewis  is  equally  true — that  is  to 


KOUNTZ   v.   KIRKPATRICK.  521 

say — when  the  market  price  is  unnaturally  inflated  by  unlawful  and 
fraudulent  practices,  it  cannot  be  the  true  means  of  ascertaining 
what  is  just  compensation.  It  is  as  unjust  to  the  seller  to  give  the 
purchaser  more  than  just  compensation,  as  it  is  to  the  purchaser,  to 
give  him  less.  Right  upon  this  point  we  have  the  language  of  this 
court  in  the  case  of  a  refusal  by  a  purchaser  to  accept  (Andrews  v. 
Hoover,  8  Watts,  240).  It  is  said  :  "  The  jury  is  bound  by  a  meas- 
ure of  damages  where  there  is  one,  but  not  always  by  a  particular 
means  for  its  ascertainment.  Now  the  measure  in  a  case  like  the 
present,  is  the  difference  between  the  price  contracted  to  be  paid, 
and  the  value  of  the  thing  when  it  ought  to  have  been  accepted  ; 
and  though  a  re-sale  is  a  convenient  and  often  satisfactory  means,  it 
does  not  follow  that  it  is,  nor  was  it  said  in  Girard  v.  Taggert,  to  be 
the  only  one.  On  the  contrary,  the  propriety  of  the  direction  there, 
that  the  jury  were  not  bound  by  it,  if  they  could  find  another  more 
in  accordance  with  the  justice  of  the  case,  seems  to  have  been  ad- 
mitted ;  the  very  thing  complained  of  here."  Judge  Strong  took 
the  same  view  in  Trout  v.  Kennedy  (11  Wright,  393).  That  was 
the  case  of  a  trespasser,  and  the  jury  had  been  told  that  the  plaintiff 
was  entitled  to  the  just  and  full  value  of  the  property,  and  if  at  the 
time  of  the  trespass  the  market  was  depressed,  too  much  importance 
was  not  to  be  given  to  that  fact.  "  If  "  says  Judge  Strong,  "  at  any 
particular  time,  there  be  no  market  demand  for  an  article,  it  is  not 
of  course  on  that  account  of  no  value.  What  a  thing  will  bring  in 
the  market  at  a  given  time,  is  perhaps  the  measure  of  its  value  then  ; 
but  it  is  not  the  only  one."  These  cases  plainly  teach  that  value 
and  market  price  are  not  always  convertible  terms  ;  and  certainly 
there  can  be  no  difference  injustice  or  law,  in  an  unnatural  depres- 
sion and  an  unnatural  exaltation  in  the  market  price — neither  is  the 
true  and  only  measure  of  value. 

These  general  principles  in  the  doctrine  of  damages  and  authori- 
ties, prove  that  an  inflated  speculative  market  price,  not  the  result 
of  natural  causes,  but  of  artificial  means  to  stimulate  prices  by  un- 
lawful combinations  for  the  purposes  of  gain,  cannot  be  a  legitimate 
means  of  estimating  just  compensation.  It  gives  to  the  purchaser 
more  than  he  ought  to  have,  and  compels  the  seller  to  pay  more  than 
he  ought  to  give,  and  it  is  therefore  not  a  just  criterion.  There  is  a 
case  in  our  own  State,  bearing  strongly  on  this  point  (Blydenburgli 
et  al.  v.  Welsh  et  al.  Baldwin's  Rep.  331).  Judge  Baldwin  had 
charged  the  jury  in  these  words  :  "  If  you  are  satisfied  from  the  evi- 
dence, that  there  was  on  that  day  a  fixed  price  in  the  market,  you 
must  be  governed  by  it  ;  if  the  evidence  is  doubtful  as  to  the  price, 


522  MARKET   VALUE. 

and  witnesses  vary  in  their  statements,  you  must  adopt  that  which 
you  think  best  accords  with  the  proof  in  the  case."  Jn  granting  a 
new  trial,  Judge  IIopkinson  said:  "It  is  the  price — the  market 
price — of  the  article  that  is  to  furnish  the  measure  of  damages. 
Now  what  is  the  price  of  a  thing,  particularly  the  market  price  ? 
We  consider  it  to  be  the  value,  the  rate  at  which  the  thing  is  sold. 
To  make  a  market,  there  must  be  buying  and  selling,  purchase  and 
sale.  If  the  owner  of  an  article  holds  it  at  a  price  which  nobody 
will  give  for  it,  can  that  be  said  to  be  its  market  value  ?  Men  some- 
times put  fantastical  prices  upon  their  property.  For  reasons  per- 
sonal and  peculiar,  they  may  rate  it  much  above  what  any  one  would 
give  for  it.  Is  that  the  value  ?  Further,  the  holders  of  an  article, 
flour,  for  instance,  under  a  false  rumor,  which,  if  true,  would  aug- 
ment its  value,  may  suspend  their  sales,  or  put  a  price  upon  it,  not 
according  to  its  value  in  the  actual  state  of  the  market,  but  accord- 
ing to  what  in  their  opinion  will  be  its  market  price  or  value,  pro- 
vided the  rumor  shall  prove  to  be  true.  In  such  a  case,  it  is  clear, 
that  the  asking  price  is  not  the  worth  of  the  thing  on  the  given  day, 
but  what  it  is  supposed  it  will  be  worth  at  a  future  day,  if  the  con- 
tingency shall  happen  which  is  to  give  it  this  additional  value.  To 
take  such  a  price  as  the  rule  of  damages,  is  to  make  the  defendant 
pay  what  in  truth  never  was  the  value  of  the  article,  and  to  give  to 
the  plaintiff  a  profit  by  a  breach  of  the  contract,  which  he  never 
would  have  made  by  its  performance." 

The  case  of  suspended  sales  upon  a  rumor  tending  to  enhance 
the  price,  put  by  Judge  Hopkinson,  bears  no  comparison  to  the  case 
alleged  here,  where  a  combination  is  intentionally  formed  to  buy  up 
oil,  hold  it  till  the  year  is  out,  and  thus  force  the  market  price  up 
purposely  to  affect  existing  contracts,  and  compel  the  sellers  to  pay 
heavy  damages  for  non-fulfillment  of  their  bargains.  In  the  same 
case,  Judge  Hopkinson  further  said  :  "  We  did  not  intend  that  they 
(the  jury)  should  go  out  of  the  limits  of  the  market  price,  nor  to 
take  as  that  price  whatever  the  holders  of  the  coffee  might  choose  to 
ask  for  it ;  substituting  a  fictitious,  unreal  value,  which  nobody 
would  give,  for  that  at  which  the  article  might  be  bought  or  sold." 
"  In  determining,"  says  an  eminent  writer  on  contracts,  "  what  is 
the  market  value  of  property  at  any  particular  time,  the  jury  may 
sometimes  take  a  wide  range ;  for  this  is  not  always  ascertainable  by 
precise  facts,  but  must  sometimes  rest  on  opinion ;  and  it  would 
seem  that  neither  party  ought  to  gain  or  lose  by  a  mere  fancy  price, 
■or  an  inflated  and  accidental  value,  suddenly  put  in  force  by  some 


KOUNTZ   v.    KIRKPATRICK.  523 

speculative  movement,  and  as  suddenly  passing  away.  The  question 
of  damages  by  a  market  value  is  peculiarly  one  for  a  jury"  (Parsons 
on  Contracts,  vol.  2,  p.  482,  ed.  1857).  In  Smith  v.  Griffith  (3  Hill, 
337-8),  C.  J.  Nelson  said:  "I  admit  that  a  mere  speculating  price 
of  the  article,  got  up  by  the  contrivance  of  a  few  interested  dealers, 
is  not  the  true  test.  The  law,  in  re^ulatins:  the  measure  of  damages, 
contemplates  a  range  of  the  entire  market,  and  the  average  of  prices, 
as  thus  found,  running  through  a  reasonable  period  of  time.  Neither 
a  sudden  and  transient  inflation,  nor  a  depression  of  prices,  should 
control  the  question.  These  are  often  accidental,  promoted  by  inter- 
ested and  illegitimate  combinations,  for  temporary,  special  and  self- 
ish objects,  independent  of  the  objects  of  lawful  commerce ;  a  forced 
and  violent  perversion  of  the  laws  of  trade,  not  within  the  contem- 
plation of  the  regular  dealer,  and  not  deserving  to  be  regarded  as  a 
proper  basis  upon  which  to  determine  the  value,  when  the  fact  be- 
comes material  in  the  administration  of  justice."  I  may  close  these 
sayings  of  eminent  jurists  with  the  language  of  Chief  Justice  Gibson, 
upon  stock-jobbing  contracts  (Wilson  v.  Davis,  5  W.  &  S.  523). 
"  To  have  stipulated,"  says  he,  "for  a  right  to  recruit  on  separate 
account,  would  have  given  to  the  agreement  an  appearance  of  trick, 
like  those  of  stock-jobbing  contracts,  to  deliver  a  given  number  of 
shares  at  a  certain  day,  in  which  the  seller's  performance  had  been 
forestalled  by  what  is  called  cornering ;  in  other  words,  buying  up 
all  the  floating  shares  in  the  market.  These  contracts,  like  other 
stock-jobbing  transactions,  in  which  parties  deal  upon  honor,  are  sel- 
dom subjected  to  the  test  of  judicial  experiment,  but  they  would 
necessarily  be  declared  fraudulent." 

Without  adding  more,  I  think  it  is  conclusively  shown  that  what 
is  called  the  market  price,  or  the  quotations  of  the  articles  for  a 
given  day,  is  not  always  the  only  evidence  of  actual  value,  but  that 
the  true  value  may  be  drawn  from  other  sources,  when  it  is  shown 
that  the  price  for  the  particular  day  had  been  unnaturally  inflated. 
It  remains  only  to  ascertain  whether  the  defendant  gave  such  evi- 
dence as  to  require  the  court  to  submit  to  the  jury  to  ascertain  and 
determine  the  fair  market  value  of  crude  oil  per  gallon,  on  the  31st 
of  December,  1869,  as  demanded  by  the  defendant  in  his  fifteenth 
point.  There  was  evidence  from  which  the  jury  might  have  adduced 
the  following  facts,  viz. :  That  in  the  month  of  October,  1869,  a 
number  of  persons  of  large  capital,  and  among  them  Kirkpatrick  & 
Lyons,  combined  together  to  purchase  crude  oil,  and  hold  it  until 
the  close  of  the  year  1869 ;  that  these  persons  were  the  holders,  as 


521  MARKET   VALUE. 

purchasers,  of  a  large  number  of  sellers'  option  contracts,  similar  to 
the  one  in  suit  ;  that  they  bought  oil  largely,  and  determined  to 
hold  it  from  the  market  until  the  year  1870  before  selling;  that  oil, 
in  consequence  of  this  combination,  ran  up  in  price,  in  the  face  of 
an  increased  supply,  until  the  31st  day  of  December,  1869,  reaching 
the  price  of  seventeen  to  eighteen  cents  per  gallon,  and  then  sud- 
denly dropped  as  soon  as  the  year  closed.  Major  Frew,  one  of  the 
number,  says  :  It  was  our  purpose  to  take  the  oil,  pay  for  it,  and 
keep  it  until  January  1st,  1870,  otherwise  we  would  have  been  head- 
ing the  market  on  ourselves.  Mr.  Long  says,  that  on  the  3d  of  Jan- 
uary, 1870,  he  sold  oil  to  Fisher  &  Brother  (the  plaintiffs)  at  thirteen 
cents  a  gallon,  and  could  find  no  other  purchaser  at  that  price.  Sev- 
eral witnesses,  dealers  in  oil,  testify  that  they  knew  of  no  natural 
cause  to  create  such  a  rise  in  price,  or  to  make  the  difference  in  price 
from  December  to  January.  It  was  testified,  on  the  contrary,  that 
the  winter  production  of  oil  was  greater  in  December,  1869,  than  in 
former  years,  by  several  thousand  barrels  per  day,  a  fact  tending  to 
reduce  the  price  when  not  sustained  by  other  means.  Mr.  Benn 
says  he  knew  no  cause  for  the  sudden  fall  in  price  on  the  1st  Janu- 
ary, 1870,  except  that  the  so-called  combination  ceased  to  buy  at  the 
last  of  December,  1869. 

It  was,  therefore,  a  fair  question  for  the  jury  to  determine 
whether  the  price  which  was  demanded  for  oil  on  the  last  day 
of  December,  1869,  was  not  a  fictitious,  unnatural,  inflated  and 
temporary  price,  the  result  of  a  combination  to  "  bull  the  mar- 
ket," as  it  is  termed,  and  to  compel  sellers  to  pay  a  false  and 
swollen  price  in  order  to  fulfill  their  contracts.  If  so,  then  such 
price  was  not  a  fair  test  of  the  value  of  the  oil,  and  the  jury 
would  be  at  liberty  to  determine,  from  the  prices  before  and  after 
the  day,  and  from  other  sources  of  information,  the  actual  market 
value  of  the  oil  on  the  31st  of  December,  1869.  Any  other  course 
would  be  unjust  and  injurious  to  fair  dealers,  and  would  enable 
gamblers  in  the  article  to  avail  themselves  of  their  own  wrong, 
and  to  wrest  from  honest  dealers  the  fruits  of  their  business.  It 
cannot  be  possible  that  a  "  corner,"  such  as  took  place  a  few  weeks 
since  in  the  market  for  the  stock  of  a  western  railroad  company, 
where  shares,  worth  in  the  ordinary  market  about  sixty  dollars 
each,  were  by  the  secret  operations  of  two  or  three  large  capital- 
ists, forced  up  in  a  few  days  to  a  price  over  two  hundred  dollars 
a  share,  can  be  a  lawful  measure  of  damages.  Men  are  not  to  be 
stripped  of  their  estates  by  such  cruel  and  wrongful  practices ;  and 


BLANEY   v.   HENDRICKS.  525 

courts  of  justice  cannot  so  wholly  ignore  justice  as  to  assume  such 
a  false  standard  of  compensation. 

Shaeswood  and  Williams,  JJ.,  dissented  on  the  question  of  the 
measure  of  damages. 

Note. — Where  the  owner  of  goods  shipped  them  consigned  to  another,  giving 
the  consignee  the  option  to  take  them  at  a  certain  price  or  return  them,  that  price 
•with  interest  from  the  day  when  the  goods  should  have  reached  their  destination, 
and  not  their  market  value  at  that  place,  furnishes  the  measure  of  damages  in  an 
action  against  the  carrier  for  his  negligent  failure  to  deliver  the  goods  (Magnin 
v.  Dinsmore,  62  N.  Y.  35). 

Undoubtedly  the  stipulated  price  in  such  a  case  would  properly  limit  the  re- 
covery. But  it  is  presumed  that  the  learned  judge,  who  delivered  the  opinion  of 
the  court  in  Magnin  v.  Dinsmore,  assumed  that  the  market  price  exceeded  that 
fixed  between  the  consignor  and  consignee.  The  shipper's  instruction  as  to  the 
price  for  which  he  would  sell,  could  not  justify  a  recovery  against  the  carrier 
leyond  the  market  value. 

Where  goods  of  a  retail  dealer,  are  wrongfully  carried  away,  he  is  entitled  to 
recover  their  retail  value  (Wehle  v.  Butler,  01  N.  Y.  245). 


INTEREST. 

Interest  on  Accounts  Stated  and  Liquidated  Sums. 


COURTS    OF    WESTMINSTER    HALL. 

[1751]     Blaney,  Assignee  of  Bradley  v.  Hendricks  (2 

Wm.  Bl.  700). 

Interest  is  due  on  an  account  stated  for  money  lent. 

Whitaker  moved  to  set  aside  a  writ  of  inquiry,  because  the  jury 
had  allowed  a  sum  of  811.  6s.  8d.  as  interest  up  to  the  time  of  the  in- 
quisition, on  a  balance  of  3,597£.  due  on  an  account  stated  between 
the  bankrupt  and  the  defendants.  And  cited  Pinock  and  Willet  (1 
Bames,  151),  that  no  interest  could  be  allowed  on  a  writ  of  inquiry 
for  money  due  for  goods  sold  and  delivered. 

Burland,  for  the  plaintiff,  alleged  that  it  is  a  settled  rule  that  every 
liquidated  sum  due  from  one  man  to  another,  carries  interest,  both  in 
law  and  equity,  as  much  as  a  note  of  hand  payable  at  a  certain  time 
(Barrel  and  Parker,  Cane.  July  22 d,  1751,  2  Yes.  363)  ;  balance  of  a 
stated  account  will  carry  interest  between  merchants  ;  by  Lord  IIard- 
wicke,  Chancellor.  Eobinson  and  Bland,  in  the  Kings  Bench  (Burr. 
1077) ;  money  lent  carries  interest  to  the  judgment :  And  this  bal- 
ance appears,  from  the  defendant's  own  affidavit,  to  be  for  money 
lent  and  advanced. 


526  WARRANTIES. 

Gould,  Blackstone,  and  Napes,  JJ.  (absent  C.  J.  De  Grey), 
thought  the  interest  was  properly  allowed  :  interest  is  due  on  all  liqui- 
dated sums  from  the  instant  the  principal  becomes  due  and  payable;  * 
therefore,  on  all  bills  of  exchange,  notes  of  hand  payable  at  a  day  cer- 
tain (or  after  demand,  if  payable  on  demand),  and  on  money  lent 
(Bunb.  119,  Vemon  and  Cholmondeley).  Goods  sold  and  delivered 
are  usually  upon  credit  of  three  months,  six  months,  or  indefinite. 
Nor  is  the  sum  liquidated  till  the  jury  find  the  value. 

Rule  discharged. 

Note. — See  Robinson  v.  Bland  (2  Burr.  1077),  in  which  it  was  settled  that  in- 
terest on  a  liquidated  sum  may  be  computed  up  to  the  time  of  entering  judg- 
ment. 

In  the  United  States  interest  is  recoverable  on  the  value  of  converted,  lost  or 
destroyed  property  (Andrews  v.  Durant,  18  N.  Y.  496;  Parrott  v.  Knickerbocker 
Ice  Co.  46  N.  Y.  361 ;  Schwerin  v.  McKee,  51  N.  Y.  180). 


WARRANTIES. 


Personal  Property  Bought  with  Warranty  and  Be-sold  with 
Warranty  ;  Costs  of  Defending  Action  for  Breach  of  Yen- 
dee's  Warranty  :  Improvident  Defense. 


COURT   OF   COMMON   PLEAS. 

[1839.]     Wrightup  v.  Chamberlain  (7  Scott,  598). 

The  plaintiff  purchased  a  horse  of  the  defendant,  with  a  warranty  of  soundness,  and  sold 
it  with  a  like  warranty  to  J.  S. ;  some  months  afterwards  J.  S.  returned  the  horse, 
finding  it  to  have  been  unsound  at  the  time  of  the  sale;  the  plaintiff  declining  to 

*  Note  by  Sir  Wm.  Blackstone. — "  These  words  must  be  taken  in  a  restricted 
sense,  and  I  must  understand  by  them  something  more  than  an  account  stated. 
If  an  account  be  stated,  and  the  nature  of  the  transaction  be  such  as  to  afford 
evidence  of  an  agreement  for  interest,  as  if  it  be  shown  to  have  been  allowed 
before  upon  a  prior  settlement  of  accounts,  then  it  may  be  warranted.  But 
if  it  be  understood  as  extending  the  claim  of  interest  upon  money  lent  generally, 
without  any  certain  time  of  payment,  or  any  agreement  for  interest  expresse'd  or 
to  be  implied,  I  shall  expect  a  body  of  authorities  more  strong  and  consistent  than  has 
yet  been  bropght  forward,  before  I  can  venture  to  say  that  it  is  allowable  by  law. 
Hitherto  it  has  only  been  allowed  upon  written  contracts  for  the  payment  of  money  at  a 
given  day,  and  upon  contracts,  express  or  implied,  for  the  payment  of  interest."  Per 
Lord  Ellenborough  in  Calton  v.  Bragg  (15  East.  223),  where  it  was  ruled  that  interest  Is 
not  allowable  by  law  upon  money  lent  generally.  The  statement  of  the  principal  case  in 
3  Wils.  206  is,  that  "  upon  an  account  stated  between  merchant  and  merchant,  it  shall 
carry  interest  from  the  time  it  was  liquidated." 


WEIGIITUP  t.   CHAMBERLAIN.  527 

take  it  back,  J.  S.  brought  an  action  on  the  warranty ;  the  plaintiff  gave  the  defend- 
ant notice  that  the  horse  was  returned  to  him  as  unsound,  and  an  action  brought; 
the  defendant  disregarding  this  notice,  the  plaintiff  defended  the  action  brought 
against  him  by  J.  S.,  and  failed.  In  an  action  against  the  defendant  on  his  war- 
ranty— the  jury  finding  that  the  plaintiff  might,  by  a  reasonable  examination  of  the 
horse,  have  discovered  that  it  was  unsound  at  the  time  he  sold  it  to  J.  fe :  II  Id, 
that  the  plaintiff  was  not  entitled  to  recover  as  special  damage  the  costs  incurred 
by  him  in  the  defense  of  the  former  action,  such  defense  being,  under  the  circum- 
stances, rash  and  improvident. 

This  was  an  action  upon  the  warranty  of  a  horse.  The  declara- 
tion assigned  for  special  damage  that  the  plaintiff,  confiding  in  the 
defendant's  warranty,  re-sold  the  horse  to  one  Jolly  with  a  warranty ; 
and  that,  the  horse  proving  unsound,  Jolly  sued  the  plaintiff,  and 
recovered  391.,  the  price  of  the  horse,  and  96/.,  the  costs  of  that 
action. 

The  defendant  paid  into  court  19/.,  the  price  for  which  lie  had 
originally  sold  the  horse  to  the  plaintiff. 

The  cause  was  tried  before  Parke,  B.,  at  the  JS"orwich  Spring 
Assizes,  1838.  The  facts  that  appeared  in  evidence  were  as  fol- 
lows : — On  the  3d  September,  1836,  the  horse  in  cmestion  was  sold 
by  the  defendant  to  the  plaintiff  for  19/.,  with  a  warranty  of  sound- 
ness. On  the  21th  of  the  same  month,  the  plaintiff  sold  it  to  Jolly 
for  39/.,  with  a  like  warranty.  On  the  17th  July  following,  Jolly 
offered  to  return  the  horse  to  the  plaintiff,  alleging  that  it  was  un- 
sound at  the  time  of  the  sale.  The  plaintiff  refusing  to  take  it  back, 
Jolly,  on  the  18th  August,  commenced  an  action  against  him  on  his 
warranty.  The  plaintiff  afterwards  took  the  horse  back,  and  gave 
the  defendant  notice  that  the  horse  had  been  returned  and  the 
action  brought,  and  that  he  should  hold  him  responsible  for  the 
result.  The  defendant  refusing  to  take  back  the  horse,  the  plaintiff 
defended  Jolly's  action,  which  resulted  in  a  verdict  and  judgment 
against  him  for  135/. — 39/.,  the  price  of  the  horse,  and  96/.  for 
Jolly's  costs :  which  sum,  and  30/.,  the  costs  of  his  defense  to  that 
action,  the  plaintiff  now  claimed  to  be  entitled  to  recover  from  the 
present  defendant.  There  was  no  direct  evidence  that  the  horse 
was  unsound  at  the  time  of  the  respective  sales,  by  the  defendant  to 
the  plaintiff,  and  by  the  plaintiff  to  Jolly:  but  it  was  proved,  that, 
when  the  horse  was  returned  by  the  latter,  upon  a  strict  examina- 
tion, a  defect  of  long  standing  was  discoverable. 

On  the  part  of  the  defendant,  it  was  contended,  that,  inasmuch 
as  the  plaintiff  might,  by  examination  of  the  horse,  have  discovered 
the  unsoundness,  his  defense  of  Jolly's  action  was  heedless  and  im- 
provident, and  therefore  the  present  defendant  was  not  chargeable 
therewith. 


528  WARRANTIES. 

On  the  other  hand,  it  was  submitted  that  the  defendant's  refusal 
to  take  back  the  horse  after  it  had  been  returned  by  Jolly,  left  the 
plaintiff  no  option,  but  compelled  him  to  defend  (Lewis  v.  Peake 
[or  Peat],  7  Taunt.  153,  2  Marsh.  431 ;  Neale  v.  Wyllie,  5  D.  &  R. 
442,  3  B.  &  C.  533 ;  Smith  v.  Compton,  3  B.  &  Ad.  407). 

Under  the  direction  of  the  learned  judge,  a  verdict  was  found 
for  the  defendant,  with  liberty  to  the  plaintiff  to  move  to  enter  a 
verdict  for  the  sum  claimed,  if  the  court  should  be  of  opinion  that 
the  special  damage  was  recoverable.  By  agreement  it  was  to  be 
taken  that  the  jury  had  found — first,  that  the  plaintiff  had  only 
agreed  to  take  the  horse  back  from  Jolly,  on  condition  that  the 
defendant  would  take  it  back  from  him — secondly,  that  the  plaintiff 
might,  before  he  defended  Jolly's  action,  have  ascertained,  by  a  rea- 
sonable examination  of  the  horse,  that  it  was  not  sound — thirdly, 
that  the  damages  did  not  exceed  191.,  unless  the  plaintiff  was  en- 
titled to  recover  the  damages  and  costs  recovered  against  him  by 
Jolly,  or  his  own  costs  of  the  defense  to  that  action. 

A  rule  nisi  was  obtained  and  argued  accordingly. 

Tindal,  C.  J. — The  only  question  in  this  case  was,  whether  or 
not  the  plaintiff  was  entitled  to  recover  as  special  damage  the  costs 
incurred  in  the  defense  of  the  action  brought  against  him  by  Jolly 
for  the  breach  of  his  warranty.  The  real  point  at  the  trial  was, 
whether  or  not  the  plaintiff  might  have  known,  by  a  reasonable  ex- 
amination of  the  horse,  before  he  defended  the  action,  that  the  ani- 
mal was  unsound  at  the  time  he  sold  it  to  Jolly ;  for,  if  so,  the  de- 
fense was  a  rash  one,  and  the  plaintiff  not  entitled  to  charge  the 
defendant  with  the  costs  of  such  improvident  defense.  Mr.  Baron 
Parke  reports  to  us  that  the  -plaintiff  might  by  a  reasonable  exam- 
ination, have  discovered  the  unsoundness,  and  that  the  191.  paid  into 
court  was  a  sufficient  sum  to  cover  the  plaintiff's  demand ;  and  so 
the  jury  have  found.  ¥e  therefore  think  the  rule  must  be  dis- 
charged. 

Rule  discharged. 

Note. — The  grantee  in  an  action  on  a  covenant  of  warranty,  express  as  in  a 
deed,  or  implied  as  on  a  sale  of  personal  property,  is  entitled  to  recover,  as  part 
of  the  damages  sustained  by  reason  of  the  failure  of  the  title  conveyed,  the  rea- 
sonable and  necessary  expenses  incurred  in  a  proper  course  of  legal  proceedings 
for  the  ascertainment  and  protection  of  his  rights  under  the  purchase,  as  well  as 
a  reasonable  compensation  for  the  trouble  and  expenses  to  which  he  may  have 
been  put  in  extinguishing  a  paramount  title. 

And  there  is  no  sound  distinction  between  the  case  in  which  the  expenses  are 
incurred  in  the  nece-sary  and  proper  prosecution  of  a  suit  for  such  ascertainment 
and  protection  of  the  purchaser's  rights,  and  the  case  of  a  defense  made  for  the 
same  purpose  (Kingsbury  v.  Smith,  13  N.  H.  109). 


CLARE   v.   MAYNARD.  529 


Bkeach   of  Warranty  ;    Special  Damage. 


THE    COURT    OF    KINGS    BENCH. 

[1837]  Clare  v.  Maynard  (6  Ad.  &  E.  519). 

In  an  action  for  breach  of  warranty  of  a  horse,  the  plaintiff  cannot  recover  as  special 
damage  the  loss  of  a  bargain  for  resale  of  the  horse,  though  the  contract  of  resale,  at 
a  profit,  had  been  actually  completed  before  the  unsoundness  was  discovered. 

The  plaintiff  having  bought  at  45/.,  and  resold  at  55/.,  but  having  been  obliged  to  take  back 
the  horse  in  consequence  of  the  unsoundness,  and  ultimately  to  sell  him  at  17/.  Qumre, 
whether  the  measure  of  damages,  in  an  action  brought  as  above,  be  the  difference 
between  the  price  given  by  the  plaintiff  and  that  ultimately  obtained  by  him,  or  be- 
tween the  last-mentioned  price  and  the  actual  value  of  the  horse  if  he  had  been  sound 
at  the  time  of  the  last  resale  ;  and,  whether  the  advance  of  price  on  the  first  resale 
by  the  plaintiff  may  be  left  to  the  jury  as  a  measure  of  such  value. 

Qucere,  also,  whether  the  plaintiff  may  recover  in  respect  of  such  advance  of  price,  as 
the  produce  of  his  care  and  expense  bestowed  upon  the  horse  between  the  times  of 
the  purchase  and  of  the  first  resale.  He  cannot  so  recover  on  a  declaration  alleging 
merely  that  he  bought  the  horse  at  45/ ,  sold  him  at  55/.,  and,  by  reason  of  the  un- 
soundness, was  obliged  to  refund  the  55/.  and  resell  the  horse  at  17/.,  whereby  he 
lost  the  profit  which  would  have  accrued  to  him  from  selling  the  horse  if  sound. 

Assumpsit  on  the  warranty  of  a  horse  bought  by  plaintiff  of  de- 
fendant. •  The  declaration,  after  stating  the  warranty,  purchase  of 
the  horse  by  plaintiff  at  the  price  of  45/.,  and  breach  of  warranty, 
alleged  the  consequent  damage  as  follows :  "  Whereby  the  said  horse 
became  and  was  of  no  use  or  value  to  the  plaintiff,  and  the  plaintiff 
hath  necessarily  incurred  a  great  charge,"  Arc,  to  wit,  "  20/.,  in  and 
about  the  causing  the  said  horse  to  be  examined,  and  the  feeding, 
keeping  and  taking  care  of  the  said  horse,  and  incidental  thereto; 
and  the  plaintiff  avers  that  he,  confiding  in  the  said  promise  of  the 
defendant,  did  afterwards,  and  before  he  knew  or  discovered  the  said 
unsoundness,  to  wit,"  &c,  "sell  the  said  horse  to  one  William  Collins, 
for  a  large  sum,  to  wit,  55/.,  and  then  warranted  and  promised  the 
said  W.  C.  that  the  said  horse  was  sound ;  and  that,  by  reason  of  the 
said  unsoundness,  the  plaintiff  was  afterwards,  to  wit,  on  the  19th  day 
of  March,  a.  d.  1836,  compelled  to  repay  the  said  sum  of  55/.,  which 
the  said  W.  C.  had  paid  the  plaintiff  as  and  for  the  price  of  the  said 
horse  at  which  he  bought  as  aforesaid  ;  and  also  the  plaintiff  was  then 
forced  and  obliged  to  pay  the  said  W.  C.  a  large  sum,  to  wit,  3/.  3s., 
for  the  expenses  of  the  said  W.  C,  by  him  necessarily  incurred  in  and 
about  the  examining,  keeping,  feeding  and  taking  care  of  the  said 
34 


530  WARRANTIES. 

horse,  and  incidental  thereto,  and  in  and  about  his  returning  the  same 
to  the  plaintiff;  and  the  plaintiff  was  also  afterwards,  to  Mat,  on  the 
29th  day  of  April,  a.  d.  1836,  forced  and  obliged  to,  and  did,  resell 
the  said  horse ;  and  the  produce  of  such  sale,  after  deducting  the  ex- 
penses thereof,  amounted  to  much  less  than  the  said  sum  of  45?.,  to 
wit,  only  17?.  lis.  Qd. :  and  the  plaintiff  hath,  by  means  of  the 
premises,  lost  and  been  deprived  of  all  the  benefits,  profits  and  ad- 
vantages which  he  might  and  would  have  derived  and  acquired  from 
reselling  the  said  horse,  had  it  been  sound  ;"  and  hath  been  and  is 
otherwise  injured,  &c.  The  defendant  pleaded  a  payment  of  39?.  2s. 
into  court.    Replication,  damage  to  a  greater  amount.    Issue  thereon. 

On  the  trial,  before  Lord  Denman,  Ch.  J.,  at.  the  London  sittings 
after  last  Hilary  term,  it  appeared  that  the  horse  had  been  sold  to 
Collins,  March  9th,  1836  (about  a  month  after  the  purchase  by  the 
plaintiff),  and  returned,  as  stated  in  the  declaration  ;  and  that  the 
plaintiff  sold  him  on  the  following  29th  of  April  (giving  notice  to 
the  defendant),  for  17?.  4s.  Further  evidence  was  gone  into  on  the 
subject  of  damage  ;  and  the  plaintiff  claimed  to  recover  101.,  the  dif- 
ference between  the  price  at  which  he  bought  of  the  defendant  and 
the  price  at  which  he  sold  to  Collins.  The  Lord  Chief  Justice  was  of 
opinion  that  he  could  not  recover  the  difference  as  damage  by  the  loss 
of  a  bargain ;  but  it  was  then  contended  that,  as  the  value  of  the 
horse  had  increased  by  101.  while  he  was  in  the  plaintiff's  possession, 
that  sum  was  the  measure  of  the  amount  which  the  plaintiff  ought  to 
recover  for  his  expenses  and  care  bestowed  upon  the  horse  between 
the  time  of  the  purchase  and  the  sale  to  Collins.  The  Lord  Chief 
Justice,  in  summing  up,  told  the  jury  that  the  plaintiff  was  entitled 
to  recover,  in  addition  to  the  45?.  paid  by  him,  the  expenses,  stated 
in  evidence,  of  keep,  feeding  and  stabling  (see  Chesterman  v.  Lamb, 
2  Ad.  &  E.  129),  and  11.  8s.  lid.,  the  costs  of  the  above-mentioned 
notice  of  resale ;  and  that  from  the  aggregate  of  these  was  to  be  de- 
ducted 171.  4:8.,  the  produce  of  the  ultimate  sale.  But  his  lordship 
directed  the  jury  not  to  allow  the  difference  between  the  45?.  and  55?. 
The  jury  found  that  the  39?.  2s.  paid  into  court  was  sufficient ;  and  a 
verdict  was  entered  for  the  defendant. 

Hill  now  moved  for  a  new  trial  on  the  ground  of  misdirection. 
It  has  been  held,  in  former  cases,  that  the  plaintiff,  in  an  action  for 
breach  of  warranty,  could  not  recover  for  the  mere  loss  of  a  bargain 
(see  Flureau  v.  Thornhill,  2  W.  B.  1078 ;  1  Sugd.  on  Vendors,  235 
[9th  ed.],  and  the  cases  there  cited) ;  but  the  present  case  differs  from 
them,  inasmuch  as  the  article,  here,  had  actually  been  resold  by  the 
plaintiff  at  an  advanced  price.     He  is  clearly  entitled  to  the  10?.,  as 


CLARE   v.   MAYNARD.  531 

the  amount  either  of  expenses  and  care  bestowed  before  the  bargain, 
or  of  profit  lost  on  the  bargain  ;  and  the  allowance  of  that  sum  would 
have  given  him  the  verdict.  If  the  horse  had  been  sound,  the 
plaintiff  would  have  had  in  his  pocket  the  difference  between  4:61. 
and  557. ;  he  loses  that  sum  by  the  breach  of  warranty,  whatever  de- 
nomination may  be  given  to  the  difference.  [Patteson,  J.  If  you 
claim  it  as  a  profit  lost,  you  might  make  a  similar  demand  if  a  pur- 
chaser had  given  the  plaintiff  1007.  or  5007.]  It  might  be  made,  pro- 
vided there  had  been  no  collusion.  The  plaintiff  had  received  a  cer- 
tain amount  of  purchase-money,  and  was  obliged  to  refund  it  on 
account  of  the  failure  of  warranty.  [Lord  Denman,  Ch.  J.  At  the 
trial,  you  claimed  the  107.  on  the  ground  now  stated,  but  I  thought  it 
was  not  so  recoverable.  Then  you  said  that  the  amount  must  be  given 
under  the  head  of  expenses.]  Supposing  the  horse,  when  bought,  to 
have  been  worth  45/.  if  sound,  the  plaintiff,  by  his  care,  and  choice  of 
a  market,  had  raised  the  price  to  551.  [Lord  Penman,  Ch.  J.  Sup- 
pose you  had  taken  the  horse  to  twenty  different  markets  before  you 
sold  him,  could  you  have  claimed  the  expenses  of  taking  him  to  each  ?] 
Only  so  far  as  the  result  of  such  expense  appeared  in  an  increase  of 
the  price.  [Patteson,  J.  I  doubt  if  the  declaration  answers  to  this 
view  of  the  case.  You  do  not  allege  that  the  value  of  the  horse 
had  been  increased.  Colereoge,  J.  It  would  make  no  difference, 
In  this  way  of  putting  the  case,  if  the  plaintiff  had  not  sold  the  horse 
at  an  advance  of  101.,  provided  the  value  had  been  increased  by  that 
amount.]  The  only  difference  then  would  have  been  in  the  greater 
difficulty  of  proof.  The  plaintiff  would,  at  any  rate,  be  entitled  to 
damages  measured  by  the  additional  value  which  his  care  and  expenses 
had  given  to  the  horse ;  and  that  value  is  here  ascertained,  by  a  ~bona 
fide  sale,  to  have  been  101. 

Lord  Denivian,  Ch.  J. — The  special  damage  alleged  in  the  declar- 
ation is,  that  the  plaintiff,  who  is  stated  to  have  bought  the  horse  for 
457.,  and  sold  him  to  Collins  at  557.,  was  obliged  to  repay  the  557.  and 
give  up  the  bargain  with  Collins.  If  the  claim,  at  the  trial,  had  been 
rested  upon  the  difference  in  amount  between  the  two  bargains,  I 
should  have  laid  down,  as  in  the  case  of  Cox  v.  "Walker  *  (which  has 

*  Cox  v.  Walker  was  tried  at  the  Surrey  Lent  Assizes,  1S35,  before  Lord  Desman,  Ch. 
J.  The  action  was  for  breach  of  warranty  of  a  horse  sold  as  sound ;  and  the  special 
damage  alleged  in  the  declaration  was,  the  plaintiffs  expense  incurred  by  reason  of  the 
warranty,  and  his  loss  of  gains  and  profits  in  reselling  the  horse.  The  only  plea  was  a 
denial  of  the  unsoundness.  The  plaintiff  had  bought  t;ie  horse  of  the  defendant  for  1007., 
and  had  been  offered  140/.  for  him  ;  but,  the  horse  proving  unsound,  plaintiff  had  been 
obliged  to  give  up  the  bargain,  and  to  sell  him  for  49/.  7s.     The  Lord  Chief  Justice 


532  WARRANTIES. 

been  a  long  time  depending  before  us),  that  the  jury  were  to  say 
whether  it  resulted  from  the  price  given  by  Collins  that  the  value  of 
the  horse,  if  sound,  would  have  been  551.  at  the  time  when  the 
plaintiff  finally  sold  him.  But  that  view  of  the  case  was  given  up ; 
and  it  was  then  contended  that  the  plaintiff'  was  entitled  to  recover 
for  the  money  he  had  laid  out  on  the  horse  in  consequence  of  having 
bought  him  with  the  defendant's  warranty.  I  think,  however,  that 
the  plaintiff  cannot  recover  that.  The  damage  claimed  in  the  declara- 
tion is  the  loss  on  the  bargain ;  and  the  claim,  as  ultimately  made, 
was  not  supported  in  proof. 

Patteson,  J.* — Whether  the  plaintiff  could,  under  the  circum- 
stances, recover  any  expense  which  he  has  been  at  in  advancing  the 
value  of  the  horse,  is  a  question  which  does  not  arise  on  this  declara- 
tion ;  for  it  merely  states  that  the  plaintiff  had  sold  the  horse  at  a  dif- 
ferent price  from  that  at  which  he  bought  him  ;  it  does  not  aver  that 
the  plaintiff  laid  out  any  money  on  the  horse  in  the  mean  time.  The 
statement,  therefore,  means  nothing  but  the  loss  of  a  bargain,  the 
plaintiff  having  bought  at  45Z.  and  sold  at  551.,  which  last  sum  he  was 
obliged  to  return.  Whether  or  not  he  could  have  recovered  if  the 
damage  had  been  differently  laid,  it  is  not  necessary  to  say. 

Coleridge,  J. — The  plaintiff  cannot  recover  upon  this  record. 
The  declaration  merely  alleges  that  the  plaintiff  bought  the  horse  at 
so  much,  and  resold  him  at  so  much  more,  not  alleging  any  cause  of 
the  advance.  That  shows  only,  that  the  plaintiff  is  seeking  to  recover 
for  a  good  bargain  lost ;  which,  it  is  admitted,  cannot  be  done. 

Rule  refused. 

directed  the  jury  that  the  plaintiff  was  entitled  to  recover  the  difference  between  the 
price  at  which  he  had  sold,  and  the  actual  value  of  the  horse  if  he  had  been  sound  at  the 
time  of  such  sale;  and  he  left  to  the  consideration  of  the  jury,  as  a  measure  of  the  value, 
the  price  offered  lor  the  horse  while  in  th  ■  plaintiff's  hands.  The  jury  found  for  the 
plaintiff,  damages  90?  13s.  A  rule  nisi  was  obtained  for  a  new  trial  on  the  ground  of 
misdirection,  or  for  a  reduction  of  damages.  Cause  was  shown  in  Easter  term  (April 
28th),  1836,  before  Lord  Dexman,  Ch.  J.,  Littledale,  Patteson  and  Coleridge,  JJ.,  by 
by  Thesic/er  and  Steer,  and  the  rule  was  supported  by  Piatt  and  Adolphus.  The  court 
took  time  for  consideration  ;  and  the  case  stood  over  for  several  terms,  and  was  at  length 
compromised. 

*  Littledale,  J.,  was  absent. 


PASSINGER  v.   THORBURN.  533 


Breach  of  Warranty  ;    Consequential  Damages. 


COURT   OF    APPEALS,    NEW    YORK. 

[1866.]  Passingek  v.  Thorburn  (34  N.  Y.  G34). 

Where  there  is  a  special  warranty,  and  a  breach,  the  plaintiff  is  entitled  to  such  damages 
as  were  the  natural  and  necessary  consequences  of  the  breach. 

Where  the  defendant  sold  cabbage  seed,  and  warranted  the  same  to  produce  Bristol  cab- 
bages, which  warranty  was  untrue  :  Held,  the  damages  would  be  the  value  of  a  crop 
of  Bristol  cabbages,  such  as  ordinarily  would  have  been  produced  that  year,  deduct- 
ing the  expense  of  raising  the  crop,  and  also  the  value  of  the  crop  actually  raised 
'  therefrom. 

Appeal  to  the  New  York  Court  of  Appeals. 

Daties,  Ch.  J. — This  is  an  action  brought  to  recover  damages 
for  a  breach  of  warranty.  The  plaintiff  purchased  of  the  defendant 
a  quantity  of  cabbage  seed,  and,  according  to  the  facts  as  found  by 
the  jury,  warranted  the  same  to  be  Bristol  cabbage  seed,  and  that 
such  seed  would  produce  Bristol  cabbages.  The  jury  found  that  _it 
was  not  Bristol  cabbage  seed,  and  that  it  did  not  produce  Bristol 
cabbages.  The  judge  charged  the  jury  that,  if  the  warranty  was 
untrue,  then  the  plaintiff  would  be  entitled  to  such  damages  as  were 
the  natural  and  necessary  consequence  of  the  breach  ;  that  the  dam- 
ages would  be  the  value  of  a  crop  of  Bristol  cabbages,  such  as  they 
should  believe  would  ordinarily  have  been  produced  that  year,  de- 
ducting all  expense  of  raising  the  crop,  and  also  deducting  the  pro- 
duct or  value  of  the  crop  actually  raised.  The  jury  found  a  verdict 
for  the  plaintiff,  and  judgment  thereon  was  affirmed  at  General 
Term,  and  the  defendant  now  appeals  to  this  court.  The  question 
presented  for  decision  is,  whether  the  rule  of  damages  laid  down  for 
the  government  of  the  juryls  the  correct  one.  The  fact  and  nature 
of  the  warranty,  and  the  breach  thereof)  are  disposed  of  adversely  to 
the  defendant  by  the  verdict  of  the  jury. 

The  rule  upon  this  subject,  as  stated  by  Lord  Campbell,  in 
Smeed  v.  Foord  (102  Eng.  Com.  Law,  612),  is  found  in  Hadley  v. 
Baxendale  (9  Exch.  341),  where  it  is  laid  down  in  accordance  with 
the  Code  Napoleon,  with  Pothier,  with  Chancellor  Kent,  and  with 
all  other  authorities,  that  the  damages  which  one  party  to  a  contract 
ought  to  receive,  in  respect  of  a  breach  of  it  by  the  other,  are  such 
as  either  arise  naturally,  that  is,  in  the  usual  course  of  things,  from 
the  breach  itself,  or  such  as  may  reasonably  be  supposed  to  have 


534  WARRANTIES. 

been  contemplated  by  the  parties  when  making  the  contract,  as  the 
probable  result  of  the  breach.  Sedgwick  on  Damages  (p.  290)  says, 
it  seems  originally  to  have  been  held  that  the  measure  of  damages, 
when  the  thing  sold  with  warranty  did  not  answer  the  warranty, 
was  the  difference  between  the  price  paid  and  the  actual  value  ;  but 
it  is  now  well  settled  that  the  rule  is,  the  difference  between  the 
actual  value  and  the  value  that  the  article  would  have  possessed  if  it 
had  conformed  to  the  warranty.  The  same  rules  are  enunciated  by 
Selden,  J.,  in  delivering  the  opinion  of  the  court  in  Griffin  v.  Col- 
ver  (16  N.  Y.  489),  when  he  says:  "Profits  which  would  certainly 
have  been  realized  but  for  the  defendant's  default,  are  recoverable ; 
those  which  are  speculative  or  contingent  are  not.  The  broad  gen- 
eral rule  is,  that  the  party  injured  is  entitled  to  recover  all  his  dam- 
ages, including  gains  prevented  as  well  as  losses  sustained,  and  this 
rule  is  subject  to  but  two  conditions ;  the  damages  must  be  such  as 
may  fairly  be  supposed  to  have  entered  into  the  contemplation  of 
the  parties  when  they  made  the  contract,  that  is,  must  be  such  as 
might  naturally  be  expected  to  follow  its  violation,  and  they  must 
be  certain,  both  in  their  nature  and  in  respect  to  the  cause  from 
which  they  proceed." 

The  following  cases  illustrate  the  application  of  these  rules : 
Bonadaile  v.  Bruxton  (8  Term,  535)  was  an  action  to  recover  dam- 
ages for  a  breach  of  warranty,  in  the  sale  of  a  chain  cable.  The  de- 
fendant sold  to  the  plaintiff  a  chain  cable,  as  a  substitute  for  a  rope 
cable,  of  sixteen  inches,  for  the  use  of  the  plaintiff's  ship,  and  war- 
ranted the  chain  cable  should  last  two  years  ;  that  the  plaintiff  used 
the  chain  cable  from  time  to  time  until  it  broke,  and  that,  in  breach 
of  the  warranty,  the  chain  cable  did  not  last  two  years,  as  the  substi- 
tute for  the  rope  cable,  but,  on  the  contrary,  within  the  two  years, 
and  while  the  plaintiff's  ship  was  held  by  the  chain  cable,  one  of  the 
links  thereof  broke,  and  thereby  the  chain  cable  and  an  anchor  of 
the  plaintiff  to  which  it  was  affixed  were  wholly  lost  to  the  plaintiff. 
The  jury  found  for  the  plaintiff  the  value,  as  well  of  the  lost  anchor 
as  of  the  cable.  On  motion  for  a  new  trial,  it  was  contended  that 
the  plaintiff  could  not  recover  for  the  loss  of  the  anchor  as  for  a  loss 
consequent  on  the  failure  of  the  cable,  for  though  the  anchor  fol- 
lowed the  insufficient  cable,  yet  this  was  a  consequence  to  which  the 
warranty  did  not  extend,  for  the  cable  only  was  warranted.  Dallas, 
Ch.  J.,  said,  the  defendant  warrants  the  cable  sufficient  to  hold  the 
anchor,  and  it  is  found  not  to  be  sufficient.  The  holding  of  the 
anchor  by  the  cable  is  of  the  very  essence  of  the  warranty.  Park, 
J.,  said,  the  use  of  the  cable  is  to  hold  the  anchor.     Upon  the  break- 


PASSINGER   v.   THORBURN.  535 

ing  of  the  link,  the  cable  became  insufficient  to  hold  the  anchor,  and 
the  pilot  then  ordered  it  to  be  slipped,  in  the  exercise  of  a  prudent 
discretion,  to  save  both  ship  and  cargo. 

In  Page  v.  Pavey  (8  Carr.  &  Payne,  769),  the  plaintiff  sued  for  a 
breach  of  warranty  in  the  sale  of  wheat.  The  declaration  alleged  a 
sale  of  old  cone  wheat  for  seed,  with  a  warranty  that  it  would  grow, 
and  a  breach  that  it  did  not  grow,  whereby  the  wheat  became  of  no 
value  to  the  plaintiff,  and  he  was  deprived  of  great  gains  which 
would  have  arisen  from  the  straw  and  corn  which  would  have 
been  produced,  if  it  had  grown,  and  it  was  held  that  the  plaintiff 
could  give  evidence  of  what  the  value  of  the  crops  might  have 
been  with  a  view  to  make  out  his  damages,  claimed  in  his  declar- 
ation. 

Jones  v.  Bright  (5  Bing.  533),  was  an  action  for  damages  on  sale 
of  copper  for  sheathing  a  ship.  The  case  was  decided  on  the  ground 
that  there  was  an  express  warranty  that  the  copper  sold  would 
answer  the  purpose  for  which  it  was  purchased.  It  did  not,  and 
plaintiff  recovered.  Best,  Ch.  J.,  said  :  "  In  a  contract  of  this  kind, 
it  is  not  necessary  that  the  seller  should  say,  '  I  warrant , '  it  is 
enough  if  he  says  the  article  which  he  sells  is  fit  for  a  particular 
purpose.  Here,  when  Fisher,  a  mutual  acquaintance  of  the  parties, 
introduced  them  to  each  other,  he  said,  '  Mr.  Jones  is  in  want  of 
copper  for  sheathing  a  vessel,'  and  one  of  the  defendants  answered, 
4¥e  will  supply  him  well.'  That  constituted  a  contract,  and 
amounted  to  a  warranty." 

Again,  the  chief  justice  observes  :  "  If  a  man  sells  a  horse,  gen- 
erally, he  warrants  no  more  than  that  it  is  a  horse  ;  the  buyer  puts 
no  question,  and  perhaps  gets  the  animal  the  cheaper.  But,  if  he 
asks  for  a  carriage  horse,  or  a  horse  to  carry  a  female,  or  a  timid  or 
infirm  rider,  he  who  knows  the  qualities  of  the  animal  and  sells,  un- 
dertakes, on  every  principle  of  honesty,  that  it  is  fit  for  the  purpose 
indicated.  The  selling  upon  a  demand  for  a  horse  with  particular 
qualities,  is  an  affirmation  that  he  possesses  these  qualities.  So  it  has 
been  decided,  if  beer  be  sold  to  be  consumed  at  Gibraltar,  the  sale  is 
an  affirmation  that  it  is  fit  to  go  so  far." 

In  Brown  v.  Edgerton  (2  Mann.  &  Gran.  279),  the  defendant  was 
applied  to,  to  furnish  a  rope  for  a  crane  to  be  used  for  the  purpose 
of  hauling  up  and  letting  down  pipes  and  other  heavy  casks.  The 
defendant  undertook  to  supply  the  rope  for  the  plaintiffs'  crane,  and 
the  jury  found  the  rope  was  not  fit  for  that  purpose.  The  rope 
broke,  whereby  the  plaintiffs  lost  a  pipe  of  wine,  which  was  being 
raised  by  it.     The  defendant  was  held  liable  for  the  damages  occa- 


■" 


536  WARRANTIES. 

sioned,  for  the  breach  of  the  warranty,  that  the  rope  was  fit  for  the 
purpose  for  which  it  was  purchased. 

Maule,  J.,  said :  "  The  evidence  given  in  the  case  satisfactorily 
showed  that  the  defendant  undertook  to  furnish  a  rope  which  would 
fit  the  crane  and  raise  the  pipes  of  wine.  The  jury  having  found 
that  the  rope  was  an  unfit  one  for  that  purpose,  the  defendant  has 
been  guilty  of  a  breach  of  the  implied  warranty  alleged  in  the  dec- 
laration." 

The  case  of  Randall  v.  Roper  (96  Eng.  Com.  Law,  82)  is,  in  many 
particulars,  like  the  case  at  bar,  and  deserves  a  careful  consideration. 
The  declaration  charged  that  the  defendant,  by  warranting  thirty 
quarters  of  seed  barley  to  be  chevalier  seed  barley,  sold  the  same  to 
plaintiffs,  and  averred  that  said  seed  barle}7  was  not  chevalier  seed 
barley  ;  that  said  plaintiffs,  having  purchased  said  seed  barley  for  the 
purpose  of  reselling,  did,  without  having  any  notice  or  knowledge 
of  said  breach  of  warranty,  and  believing  said  seed  barley  to  be 
chevalier  seed  barley,  resell  the  same,  warranting  it  to  be  chevalier 
seed  barley,  when  in  fact  it  was  not  chevalier  seed  barley,  and  that 
the  buyers  had  sowed  the  same  without  notice  of  that  fact  in  their 
respective  lands,  as  and  for  chevalier  seed  barley,  and  the  same  not 
being  chevalier  seed  barley,  yielded  and  produced  much  less  and  in- 
ferior crops,  and  crops  of  an  inferior  quality  of  barley  than  the  same 
otherwise  would  have  done  had  the  same  been  chevalier  seed  barley. 
It  was  agreed  that  the  difference  in  price  between  chevalier  seed 
barley  and  the  seed  barley  delivered,  was  15£.,  and  that  the  loss  to 
the  parties  who  had  purchased  from  the  plaintiffs,  by  reason  of  the 
difference  in  their  crops,  was,  in  all,  2611.  7s.  6d.  These  purchasers 
\  had  made  claims  upon  the  plaintiffs  for  compensation,  and  the 
plaintiffs  agreed  to  satisfy  them.  A  verdict  was  taken  for  2G11.  7s. 
6cl.,  with  leave  to  the  defendant  to  move  to  reduce  it  to  151.  The 
rule  was  refused.  Lord  Campbell  said  :  "  I  am  clearly  of  opinion 
~  that,  in  case  the  plaintiffs  had  paid  the  damages  sustained  by  their 
vendees,  being  compelled  to  do  so  for  breach  of  a  warranty  similar 
to  that  given  by  the  defendant  to  the  plaintiffs,  they  would  have 
been  entitled  to  recover  such  damages  as  special  damage  in  this  ac- 
tion. It  was  a  probable,  a  natural,  even  a  necessary  consequence  of 
this  seed  not  being  chevalier  seed  barley,  that  it  did  not  produce  the 
expected  quantity  of  grain.  That  is  a  consequence  not  depending 
upon  the  quality  of  the  soil,  but  one  necessarily  resulting  from  the 
contract  as  to  the  quality  of  the  seed  not  being  performed."  Erle, 
J.,  said,  the  question  is,  what  amount  of  damages  is  to  be  given  for 
the  breach  of  this  warranty  ?     The  warranty  is,  that  the  barley  sold 


PASSINGER   v.   THORBURN.  537 

should  be  chevalier  barley.  The  natural  consequence  of  the  breach 
of  such  a  warranty  is,  that  the  barley  which  has  been  delivered  hav- 
ing been  sown,  and  not  being  chevalier  barley,  an  inferior  crop  has 
been  produced.  This  damage  naturally  results  from  the  breach  of 
the  warranty,  and  the  ordinary  measure  of  it  would  be  the  difference 
in  value  between  the  inferior  crop  produced  and  that  which  would 
have  been  produced  from  chevalier  barley.  Cromptox,  J.,  said  : 
"  Taking  the  narrowest  rule  as  to  the  probable  and  necessary  conse- 
quences of  a  breach  of  contract,  these  damages  fall  within  it,  and  all 
the  judges  held  and  agreed  that  the  plaintiffs  were  entitled  to  re- 
cover the  damages  sustained  by  their  vendees  upon  a  breach  of  the 
warranty."  This  is  the  well-settled  law  in  this  country,  it  having 
been  held  that,  where  an  article  is  sold  with  a  warranty,  and  the 
vendee  resells  with  a  like  warranty,  the  sum  paid  by  him  in  an  ac- 
tion by  his  sub-vendee  for  a  breach  of  that  warranty,  is  prima  facie 
evidence  of  the  amount  which  he  will  be  entitled  to  recover  from 
his  vendor  in  an  action  in  his  own  behalf  (Reggio  v.  Bragiotti,  7 
Cush.  166  ;  Armstrong  v.  Perry,  5  Wend.  535  ;  Blasdale  v.  Babcock, 
1  Johns,  518).  And  this  court,  in  Muller  v.  Eno  (1  Kern.  597),  held 
that  a  purchaser  may  recover  for  a  breach  of  a  warranty,  although 
he  has  sold  the  goods  and  no  claim  has  been  made  on  him,  and  that 
it  was  not  necessary  for  him  to  show  the  price  on  the  resale.  That 
price  may  be  evidence  of  the  damages,  but  does  not  furnish  the  rule 
in  respect  to  them. 

In  Smeed  v.  Foord  {supra),  the  question,  what  damages  the 
plaintiff  was  entitled  to  recover,  on  failure  to  deliver  a  threshing 
machine  according  to  contract,  Lord  Campbell  observed,  that  the 
defendant  knew  that  the  plaintiff  required  the  machine  for  the  pur- 
pose of  threshing  wheat  in  the  field.  Then,  was  it  not  contemplated 
by  the  parties  that,  if  the  machine  was  not  delivered  by  the  time 
fixed,  damage  to  the  wheat  would  in  all  probability  be  the  result, 
particularly  in  such  a  variable  climate  as  this  ?  Owing  to  the  non- 
delivery of  the  machine,  the  wheat  was  stacked  and  afterward  dam- 
aged by  the  rain  which  ensued.  This  injury,  and  the  loss  and  ex- 
pense which  it  involved,  were  the  natural  results  of  the  defendant's 
delay.  They  were  also  results  which  the  parties  must  have  foreseen. 
Crompton,  J.,  adopts  the  rule,  that  damages  which  may  reasonably 
be  supposed  to  have  been  contemplated  by  the  contracting  parties. 
are  damages  which  naturally  arise  from  a  breach  of  the  contract. 
He  adds  :  "  I  doubt  whether,  in  this  case,  it  is  the  duty  of  a  judge 
to  lay  down  more  to  the  jury  than  that  the  plaintiff  is  entitled  to 
such  damages  as  are  the  natural  consequences  of  the  breach  of  the 


538  WARRANTIES. 

contract.  The  question,  what  are  such  natural  consequences,  is, 
I  think,  in  such  case,  rather  for  the  jury  than  for  the  judge,  just 
as  it  is  for  them,  not  for  him,  to  assess  the  amount  of  the  dam- 
ages." 

In  the  present  case,  it  cannot  be  doubted  that  the  damages  which 
this  plaintiff  has  sustained  are  such  as  arise  naturally  from  the  breach 
of  the  defendant's  warranty.  His  engagement  was,  that  the  seed  he 
sold  was  Bristol  cabbage  seed,  and  would  produce  Bristol  cabbages. 
It  may  therefore  have  been  reasonably  supposed  to  have  been  in 
the  contemplation  of  the  parties  that  if  the  seed  was  not  Bristol 
cabbage  seed,  and  would  not  consequently  produce  Bristol  cabbages, 
that  damage  would  necessarily  accrue  to  the  plaintiff,  and  would 
be  a  natural  consequence  of  such  breach.  The  jury  have  so 
said  in  this  case,  and  we  think  they  came  to  a  correct  conclu- 
sion. 

The  plaintiff,  in  establishing  the  warranty  and  its  breach,  was 
entitled  to  a  full  indemnity.  In  the  language  of  Ch.  J.  Shaw,  in 
Reggio  v.  Bragiotti  (supra),  "  In  this  country  the  established  rule  in 
relation  to  damages  in  actions  of  this  nature  is,  that  the  plaintiff 
may  recover  what  he  can  show  that  he  has  actually  lost.  If  the 
article  is  wholly  worthless,  then  he  shall  recover  what  would  have 
been  its  value  to  himself  at  the  time  of  the  warranty,  had  it  corre- 
sponded to  the  terms  of  the  warranty."  In  the  case  of  Cary  v. 
Gorman  (4  Hill,  625),  Mr.  Justice  Cowen  observed  :  "  A  warranty 
on  the  sale  of  a  chattel  is,  in  effect,  a  promise  that  the  subject  of 
sale  corresponds  with  the  warranty  in  title,  soundness,  or  other 
quality  to  which  it  relates:  It  naturally  follows,  that  if  the  subject 
prove  defective,  within  the  meaning  of  the  warranty,  the  stipulation 
can  be  satisfied  in  no  other  way  than  by  making  it  good.  That 
cannot  be  done  except  by  paying  to  the  vendee  such  sum  as,  together 
with  the  cash  value  of  the  defective  article,  shall  amount  to  what  it 
would  have  been  worth  if  the  defect  had  not  existed."  That  the 
measure  of  damages  in  a  breach  of  warranty  on  the  sale  of  goods  is 
the  difference  between  the  value  of  goods,  if  they  had  corresponded 
with  the  warranty,  and  their  actual  value,  as  they  in  part  were. 
This  rule  rests  upon  sound  principles,  and  is  settled  by  the  two 
carefully  considered  cases  of  Voorhees  v.  Earl  (2  Hill,  288)  and  Cary 
v.  Gorman  (4  Id.  625).  It  follows,  therefore,  that  the  rule  of  dam- 
ages, as  laid  down  by  the  learned  justice  who  tried  this  action,  in 
his  charge  to  the  jury,  was  correct,  and  the  exceptions  thereto  can- 
not be  sustained.  The  counsel  for  the  appellant  insists  that  the 
judge  at  the  circuit  erred  in  refusing  to  charge  that  the  contract 


PASSINGER  v.   THORBURN.  539 

must  be  the  result  of  the  minds  of  both  parties  meeting  and  agree- 
ing, and  unless  the  defendant  intended  to  make  a  contract  that  he 
would  pay  for  the  crop  in  case  of  its  failure  because  of  the  bad  qual- 
ity of  the  seed,  he  cannot  be  made  liable  to  such  damages.  To  the 
refusal  to  charge  both  branches  of  this  proposition,  there  is  a  general 
exception.  If  the  counsel  had  intended  to  designate  the  contract  of 
warranty  as  that  upon  which  the  minds  of  the  parties  must  have 
met,  he  was  undoubtedly  correct  in  the  position ;  but  this  is  evi- 
dently not  what  he  meant.  He  alludes  to  the  contract,  mentioned 
and  referred  to  in  the  second  branch  of  his  proposition ;  that  is,  that 
unless  the  defendant  intended  to  contract  that  he  would  pay  for  the 
crop  in  case  of  failure  of  the  seed  to  produce  the  crop  warranted,  he 
cannot  be  made  liable  in  damages.  The  authorities  cited  are  abund- 
ant to  show  that  the  defendant  must  be  held  responsible  for  the 
natural  consequences  of  the  contract  which  he  did  make,  and  the 
legal  responsibilities  following  therefrom,  whether  he  intended  to  be 
so  liable  or  not.  Ignorance  of  the  law,  and  of  the  legal  effect  of  the 
contract  made  by  him,  cannot  excuse  him  from  its  performance. 
The  law  assumes  that  both  parties  entered  into  the  contract  with 
full  knowledge  of  the  legal  rights  and  duties  resulting  therefrom  ; 
and  whether  either  of  them  intended  to  be  thus  bound,  cannot  be  a 
subject  of  proper  inquiry.  The  judge,  therefore,  justly  refused  to 
charge  as  requested. 

The  supposition  of  defendant  as  to  the  use  plaintiff  intended  to 
make  of  the  seed,  was  wholly  immaterial.  The  defendant's  liability 
is  to  be  tested  by  the  fact  whether  he  made  the  warranty,  and 
whether  there  was  a  breach  ;  and  the  extent  of  that  liability,  if  these 
two  preliminary  positions  are  established,  was,  what  sum  was  neces- 
sary to  compensate  the  plaintiff  for  the  loss  he  had  sustained  by  the 
article  sold  not  being  of  the  quality  warranted.  The  judge,  there- 
fore, properly  refused  to  charge  that  the  extent  of  defendant's  lia- 
bility, or  the  rule  of  damages  to  be  applied,  depended  in  any  manner 
upon  the  supposition  of  the  defendant  as  to  the  use  the  plaintiff 
intended  making  of  the  thing  sold.  Upon  the  principles  discussed 
and  the  authorities  cited,  there  was  no  error  committed  in  the  ad- 
mission of  evidence. 

The  judgment  must  be  affirmed,  with  costs. 

Judgment  accordingly. 

Note. — Where  the  purchaser  of  poor  seed  knows  its  inferior  character  before 
sowing  it,  he  is  not  liable  for  damages  resulting  to  either  the  crop  or  the  land 
from  the  use  of  such  seed.      Oliver  v.  Hawley,  5  Neb.  439  (1877). 


540  WARRANTIES. 


Sale  ;  Breach  of  Implied  "Warranty  ;  Extent  of  Recovery 

of  Profits. 


supreme  court,  new  jersey. 
[1873.]      WOLCOTT,     JOHNSON    &    Co.    V.    MOUNT    (36    N.   J.    [7 

Vroom],  2G2). 

Loss  of  profits  may  be  recovered  as  damages  for  the  breach  of  a  warrant}7  or  other  non- 
performance of  a  contract,  if  the  loss  results  directly  from  the  breach  of  the  contract 
itself,  or  is  such  as  might  reasonably  be  supposed  to  have  been  in  the  contemplation 
of  both  parties  at  the  time  of  the  making  of  the  contract,  as  the  result  of  non-per- 
formance; provided  that  the  profits  to  be  compensated  for  are  such  as  are  capable 
of  being  ascertained  by  the  rules  of  evidence,  to  a  reasonable  degree  of  certainty. 

On  certiorari  to  the  Monmouth  Pleas,  on  the  trial  of  an  appeal 
from  the  judgment  of  a  justice  of  the  peace. 

The  cause  was  argued  in  this  court  on  the  following  statement  of 
the  case : 

On  the  trial  of  the  appeal,  Mount,  the  appellee  and  plaintiff  be- 
fore the  justice,  proved  that  Wolcott,  Johnson  &  Co.  were  merchants, 
keeping  a  store  of  general  merchandise  in  the  county  of  Monmouth, 
and  that,  among  other  articles,  they  advertised  and  kept  agricultural 
seeds  for  sale,  and  sold  seeds.  Mount  went  to  their  store  and  asked 
one  of  the  partners,  Bloomfield  "Wolcott,  for  early  strap-leaf  red-top 
turnip  seed,  and  Wolcott  showed  him,  and  sold  to  him,  seed  wThich 
Wolcott  told  him  was  early  strap-leaf  red-top  turnip  seed,  and  sold  it 
to  Mount  (two  pounds)  as  such,  and  Mount  paid  him  cents  for 

the  same.     Mount  sowed  the  same  on  acres  of  his  ground, 

which  he  had  prepared  with  care  and  great  expense  for  the  purpose. 
Mount  had  been  in  the  habit,  year  after  year,  to  sow  early  strap-leaf 
red-top  turnip  seed,  to  produce  turnips  for  the  early  New  York  mar- 
ket, such  kind  and  description  of  turnips  yielding  a  large  profit,  and 
he,  at  time  of  purchase,  stated  that  he  wished  this  description  and 
kind  of  seed  for  that  purpose. 

The  seed  sold  to  Mount  by  Wolcott  was  sown  upon  the  ground 
prepared  for  same  by  Mount,  and  the  turnips  produced  therefrom 
were  not  early  strap-leaf  red-top  turnips,  but  turnips  of  a  different 
kind  and  description,  to  wit,  Russia,  late,  and  not  saleable  in  market, 
and  only  fit  for  cattle,  and  he  lost  his  entire  crop.  The  plaintiff 
proved  that  the  seed  sold  him  by  Wolcott  was  not  early  strap-leaf  red- 
top  turnip  see'd,  but  seed  of  a  different  kind  and  description,  to  wit, 


WOLCOTT,  JOHNSON"   &   CO.   v.   MOUKT.  541 

Russia  turnip  seed,  and  that  it  produced  no  profit  to  him,  and  that 
early  strap-leaf  red-top  turnip  seed  on  same  ground  in  other  years  had 
produced  large  profits  to  Mount,  and  on  adjoining  ground,  prepared 
in  same  way,  the  same  year,  had  produced  great  profits  to  the  owner, 
and  that  Mount  was  damaged  thereby. 

It  is  agreed  that  Wolcott  did  not  know  that  the  seed  he  sold 
Mount  was  not  early  strap-leaf  red-top  turnip  seed,  and  that  he  did 
not  sell  the  seed  to  him  fraudulently,  the  said  Wolcott  having  pur- 
chased the  seed  for  early  strap-leaf  red-top  turnip  seed.  It  is  also 
agreed  that  this  kind  of  turnip  seed  cannot  be  known  and  distin- 
guished, by  the  examination  through  sight  or  touch,  from  Russia  or 
other  kinds,  but  only  by  the  kind  of  turnips  it  produces  after  sowing, 
can  it  be  known. 

The  Court  of  Common  Pleas  gave  judgment  for  the  plaintiff  be- 
low for  $99.12  damages. 

Argued  at  February  term,  1873,  before  Justices  Bedle,  Dal- 
eimple  and  Depue. 

Deptje,  J. — The  action  in  this  case  was  brought  on  a  contract  of 
warranty  and  resulted  in  a  judgment  against  the  defendants  in  the 
action  for  damages. 

Two  exceptions  to  the  proceedings  are  presented  by  the  brief  sub- 
mitted. The  first  touches  the  right  of  the  plaintiff'  to  recover  at  all. 
The  second,  the  measure  of  damages. 

The  learned  judge,  after  holding  that  the  action  could  be  main- 
tained, proceeded  as  follows : 

The  second  reason  for  reversal  is,  that  the  court  was  in  error  in 
the  damages  awarded.  The  judgment  was  for  consequential  dam- 
ages. 

The  contention  of  the  defendants'  counsel  was,  that  the  damages 
recoverable  should  have  been  limited  to  the  price  paid  for  the  seed,  and 
that  all  damages  beyond  a  restitution  of  the  consideration,  were  too 
speculative  and  remote  to  come  within  the  rules  for  measuring  dam- 
ages. As  the  market  price  of  the  seed  which  the  plaintiff  got,  and 
had  the  benefit  of  in  a  crop,  though  of  an  inferior  quality,  was 
probably  the  same  as  the  market  price  of  the  seed  ordered,  the  de- 
fendants' rule  of  damages  would  leave  the  plaintiff  remediless. 

The  earlier  cases,  both  in  English  and  American  courts,  generally 
concurred  in  excluding,  as  well  in  actions  in  tort  as  in  actions  on  con- 
tracts, from  the  damages  recoverable,  profits  which  might  have  been 
realized  if  the  injury  had  not  been  done,  or  the  contract  had  been 
performed  (Sedgwick  on  Damages,  69). 

This  abridgment  of  the  power  of  courts  to  award  compensation 


542  WARRANTIES. 

adequate  to  the  injury  suffered,  lias  been  removed  iu  actions  of  tort. 
The  wrongdoer  must  answer  in  damages  for  those  results  injurious 
to  other  parties,  which  are  presumed  to  have  been  within  his  con- 
templation when  the  wrong  was  done  (Binninger  v.  Crater,  4  Yroom, 
513).  Thus,  in  an  action  to  recover  damages  for  personal  injuries 
caused  by  the  negligence  of  the  defendant,  the  plaintiff  was  held  to 
be  entitled  to  recover  as  damages  the  loss  he  sustained  in  his  profes- 
sion as  an  architect,  by  reason  of  his  being  incapacitated  from  pursu- 
ing his  business  (New  Jersey  Express  Co.  v.  Nichols,  4  Vroom,  435). 

A  similar  relaxation  of  this  restrictive  rule  has  been  made  at  least 
to  a  qualified  extent,  in  action  on  contracts,  and  loss  of  profits  result- 
ing naturally  from  the  breach  of  the  contract,  has  been  allowed  to 
enter  into  the  damages  recoverable  where  the  profits  that  might  have 
been  realized  from  the  performance  of  the  contract,  are  capable  of 
being  estimated  with  a  reasonable  degree  of  certainty.  In  an  action 
on  a  warranty  of  goods  adapted  to  the  China  market,  and  purchased 
with  a  view  to  that  trade,  the  purchaser  was  allowed  damages  with 
reference  to  their  value  in  Chiua,  as  representing  the  benefit  he  would 
have  received  from  the  contract,  if  the  defendant  had  performed  it 
(Bridge  v.  Wain,  1  Starkie,  504).  On  an  executory  contract  put  an 
end  to  by  the  refusal  of  the  one  party  to  complete  it,  for  such  breach 
the  other  party  may  recover  such  profits  as  would  have  accrued  to  him 
as  the  direct  and  immediate  result  of  the  performance  of  the  contract 
(Fox  v.  Harding,  7  Cush.  516 ;  Masterton  v.  Mayor  of  Brooklyn,  7 
Hill,  61).  In  an  action  against  the  charterer  of  a  vessel  for  not  load- 
ing a  cargo,  the  freight  she  would  have  earned  under  the  charter 
party,  less  expenses  and  the  freight  actually  received  for  services  dur- 
ing the  period  over  which  the  charter  extended,  was  held  to  be  the 
proper  measure  of  damages  (Smith  v.  McGuire,  3  H.  &  N.  554). 

In  the  cases  of  the  class  from  which  these  citations  have  been 
made,  and  they  are  quite  numerous,  the  damages  arising  from  loss  of 
profits  were  such  as  resulted  directly  from  non-performance,  and  in 
the  ordinary  course  of  business,  would  be  expected  as  a  necessary  con- 
sequence of  the  breach  of  the  contract.  In  the  two  cases  cited  of 
Fox  v.  Harding,  and  Masterton  v.  Mayor  of  Brooklyn,  it  was  said  that 
the  profits  that  might  have  been  realized  from  independent  and  col- 
lateral engagements,  entered  into  on  the  faith  of  the  principal  con- 
tract, were  too  remote  to  be  taken  into  consideration.  This  latter 
qualification  would  exclude  compensation  for  the  loss  of  the  profits  of 
a  resale  by  the  vendee  of  the  goods  purchased,  made  upon  the  faith 
of  his  expectation,  that  his  contract  with  his  vendor  would  be  per- 
formed. 


WOLCOTT,  JOHNSON   &   CO.   v.   MOUNT.  543 

In  the  much  canvassed  case  of  Hadley  v.  Baxendale  (9  Exch.  341), 
Alderson,  B.,  in  pronouncing  the  judgment  of  the  court,  enunciated 
certain  principles  on  which  damages  should  be  awarded  for  breaches 
of  contracts  which  assimilated  damages  in  actions  on  contract  to  ac- 
tions in  tort.  The  rule  there  adopted  as  resting  on  the  foundation  of 
correct  legal  principles  was,  that  the  damages  recoverable  for  a  breach 
of  contract,  were  either  such  as  might  be  considered  as  arising  natur- 
ally, i.  <?.,  according  to  the  usual  course  of  things,  from  the  breach  of 
the  contract  itself ;  or  such  as  might  reasonably  be  supposed  to  have 
been  in  the  contemplation  of  both  parties  at  the  time  they  made  the 
contract,  as  the  probable  results  of  the  breach  of  it ;  and  that  when 
the  contract  is  made  under  special  circumstances,  if  those  special  cir- 
cumstances are  communicated,  the  amount  of  injury  which  would  or- 
dinarily follow  from  a  breach  of  the  contract,  under  such  circum- 
stances, may  be  recovered  as  damages  that  would  reasonably  be 
expected  to  result  from  such  breach.  The  latter  branch  of  this  rule 
was  considered  by  Blackburn,  J.,  and  Martin,  B.,  as  analogous  to  an 
agreement  to  bear  the  loss  resulting  from  the  exceptional  state  of 
things,  made  part  of  the  principal  contract,  by  the  fact  that  such  spe- 
cial circumstances  were  communicated,  with  reference  to  which  the 
parties  may  be  said  to  have  contracted  (Home  v.  The  Midland  Kail- 
way  Company  [Law  Rep.]  8  C.  P.  134-140).  Under  the  operation 
of  this  rule,  damages  arising  from  the  loss  of  a  profitable  sale,  or  the 
deprivation  for  a  contemplated  use,  have  been  allowed  when  special 
circumstances  of  such  sale  or  proposed  use  were  communicated  con- 
temporaneously with  the  making  of  the  contract ;  and  have  been  de- 
nied when  such  communication  was  not  made  so  specially,  as  that  the 
other  party  was  made  aware  of  the  consequences  that  would  follow 
from  his  non-performance  (Borries  v.  Hutchinson,  18  C.  B.  [N.  S.] 
415  ;  Cory  v.  Thames  Ironworks  Co.  [Law  Rep.]  3  Q.  B.  181 ;  Home 
v.  The  Midland  Railway  Co.  [L.  R.]  8  C.P.  134;  Benjamin  on  Sales, 
665-671. 

It  must  not  be  supposed  that  under  the  principle  of  Hadley  v. 
Baxendale,  mere  speculative  profits,  such  as  might  be  conjectured  to 
have  been  the  probable  results  of  an  adventure  which  was  defeated  by 
the  breach  of  the  contract  sued  on,  the  gains  from  which  are  entirely 
conjectural,  with  respect  to  which  no  means  exist  of  ascertaining, 
even  approximately,  the  probable  results,  can,  under  any  circumstances, 
be  brought  within  the  range  of  damages  recoverable.  The  cardinal 
principle  in  relation  to  the  damages  to  be  compensated  for  on  the 
breach  of  a  contract,  that  the  plaintiff  must  establish  the  quantum  of 
his  loss,  by  evidence  from  which  the  jury  will  be  able  to  estimate  the 


544  "WARRANTIES. 

extent  of  his  injury,  will  exclude  all  such  elements  of  injury  as  are 
incapable  of  being  ascertained  by  the  usual  rules  of  evidence  to  a  rea- 
sonable degree  of  certainty. 

For  instance,  profits  expected  to  be  made  from  a  whaling  voyage, 
the  gains  from  which  depend  in  a  great  measure  upon  chance,  are  too 
purely  conjectural  to  be  capable  of  entering  into  compensation  for  the 
non-performance  of  a  contract,  by  reason  of  which  the  adventure  was 
defeated.  For  a  similar  reason,  the  loss  of  the  value  of  a  crop  for 
which  the  seed  had  not  been  sown,  the  yield  from  which,  if  planted, 
would  depend  upon  the  contingencies  of  wreather  and  season,  would 
be  excluded  as  incapable  of  estimation,  with  that  degree  of  certainty 
which  the  law  exacts  in  the  proof  of  damages.  But  if  the  vessel  is 
under  charter,  or  engaged  in  a  trade,  the  earnings  of  which  can  be 
ascertained  by  reference  to  the  usual  schedule  of  freights  in  the  mar- 
ket, or  if  a  crop  has  been  sowed  on  the  ground  prepared  for  cultiva- 
tion, and  the  plaintiff's  complaint  is,  that  because  of  the  inferior  qual- 
ity of  the  seed  a  crop  of  less  value  is  produced,  by  these  circumstances 
the  means  would  be  furnished  to  enable  the  jury  to  make  a  proper 
estimation  of  the  injury  resulting  from  the  loss  of  profits  of  this 
character. 

In  this  case  the  defendants  had  express  notice  of  the  intended  use 
of  the  seed.  Indeed,  the  fact  of  the  sale  of  seeds  by  a  dealer  keep- 
ing them  for  sale  for  gardening  purposes,  to  a  purchaser  engaged  in 
that  business,  would  of  itself  imply  knowledge  of  the  use  which  was 
intended,  sufficient  to  amount  to  notice.  The  ground  was  prepared 
and  sowed,  and  a  crop  produced.  The  uncertainty  of  the  quan- 
tity of  the  crop,  dependent  upon  the  condition  of  weather  and  season, 
was  removed  by  the  yield  of  the  ground  under  the  precise  circum- 
stances to  which  the  seed  ordered  would  have  been  exposed.  The 
difference  between  the  market  value  of  the  crop  raised,  and  the  same 
crop  from  the  seed  ordered,  would  be  the  correct  criterion  of  the  ex- 
tent of  the  loss.  Compensation  on  that  basis  may  be  recovered  in 
damages  for  the  injury  sustained  as  the  natural  consequence  of  the 
breach  of  the  contract  (Randall  v.  Roper,  E.  13.  &  E.  84  ;  Lovegrove 
v.  Fisher,  2  F.  &  F.  128). 

From  the  state  of  the  case,  it  must  be  presumed  that  the  court  be- 
low adopted  this  rule  as  the  measure  of  damages,  and  the  judgment 
should  be  affirmed. 

Justices  Bedle  and  Dalrimple  concurred. 

Note.— See  Page  v.  Pavey,  8  C.  &  P.  769;  Dingle  v.  Hare,  7  C.  B.  145;  Mil- 
burn  v.  Belloni,  39  N.  Y.  53;  reversing  34  Barb.  607;  and  Parks  v.  Morris  Ax 
&  Tool  Co.  54  N.  Y.  586. 


KN0WLE3   t.   NUNN.  515 


Warranty  Sale  of  Diseased  Cattle  ;  Yendor  knowing  Yendee's 
Intention  of  placing  them  with  other  Cattle  ;  Consequential 
Damages. 


COURT   OF    QUEEN  S    BENCH. 

[1866.]    Knowles  v.  Kush  (14  L.  T.  E.  N.  S.  [Q.  B.]  592). 

Upon  a  sale  of  two  oxen  the  plaintiff  told  the  defendant  that  if  there  was  the  least  fear 
of  disease  he  would  not  have  them,  as  he  wanted  to  put  them  with  his  other  stock, 
whereupon  the  de  endant  rep'ied  that  they  were  quite  sound  and  free  from  disease. 
The  plaintiff  thereupon  purchased  them,  and  placed  them  with  his  other  cattle  ;  in  a 
few  days  the  two  oxen  died  of  the  rinderpest,  which  they  had  upon  them  at  the  time 
of  sale,  and  which  disease  they  communic.ited  to  the  other  cattle  of  the  plaintiff,  nine 
of  which  died  therefrom.     Upon  a  action  upon  the  warranty: 

Held,  in  accordance  with  the  rule  laid  down  in  Hadley  v.  Baxendale,  that  the  plaintiff  was 
entitled  to  recover  for  the  loss  not  only  of  the  two  oxen  purchased,  but  for  that  of 
the  nine  other  beasts. 

This  was  an  action  brought  upon  a  warranty  of  soundness  of  two 
oxen  sold  by  the  defendant  to  the  plaintiff.  The  cause  was  tried  at 
the  Leeds  Assizes,  when  a  verdict  was  returned  for  the  plaintiff  for 
SOL,  with  leave  to  the  plaintiff  to  move  the  court  to  increase  the 
amount  to  2311.  10s.  4<#. 

It  appeared  that  upon  the  defendant  and  the  plaintiff  being  de- 
sirous of  effecting  a  sale  of  two  oxen,  the  plaintiff  said  to  the 
defendant  that  if  there  was  the  least  fear  of  disease,  he  would  not 
have  them,  as  he  wanted  to  put  them  with  his  other  stock ;  upon 
which  the  defendant  said  that  "  they  were  quite  sound  and  free  from 
disease." 

The  plaintiff  accordingly  purchased  the  two  oxen  for  30Z.,  and 
placed  them  with  his  other  cattle.  It  turned  out,  however,  that  at 
the  time  of  the  sale  they  were  affected  with  the  rinderpest,  of  which 
they  shortly  died,  having  communicated  the  disease  to  the  other 
cattle  of  the  plaintiff,  nine  of  which  also  died  of  that  disease.  At 
the  trial  the  defendant  denied  having  given  the  warranty ;  the  jury, 
however,  gave  effect  to  the  plaintiff's  evidence,  and  returned  a  ver- 
dict for  him,  as  before  stated.  The  rule  was  moved  upon  the  ground 
that  the  placing  of  the  two  oxen  with  the  other  cattle  of  the  plaintiff 
was  clearly  within  the  contemplation  of  the  parties  at  the  time  the 
warranty  was  given,  and  so  the  damages  arising  from  the  loss  of  the 
nine  head  of  cattle  was  fairly  within  the  rule  upon  the  subject. 
35 


546  WARRANTIES. 

Blackburn,  J. — This  case  conies  within  the  rule  laid  down  in 
Iladley  v.  Baxendale  (9  Exch.  341),  that  the  damage  was  within  the 
contemplation  of  the  parties ;  aud  the  rule  for  increasing  the  dam- 
ages must,  therefore,  be  made  absolute. 

Rule  absolute. 

Note. — In  a  recent  case,  one  who  sold  a  cow  to  a  farmer,  without  fraud,  war- 
ranted her  free  from  foot  and  mouth  disease,  the  cow  had  the  disease,  and  com- 
municated it  to  other  cows  belonging  to  the  plaintiff  with  which  she  had,  in  the 
ordinary  course  of  his  business,  been  placed,  and  she  and  several  of  them  died 
in  consequence. 

The  presiding  judge  charged  the  jury  that,  in  estimating  the  plaintiff's  dam- 
ages, they  might  consider  the  fact  that  the  plaintiff  was  a  farmer,  and  that  the 
seller  knew,  or  must  ~be  taken  to  hare  hwicn,  that  the  cow  in  question  would  be 
placed  with  other  cows,  and  that  the  consequences  which  resulted  might  natu- 
rally have  been  expected. 

On  a  motion  for  a  new  trial,  this  charge,  aud  a  verdict  found  in  pursuance  of 
it,  for  the  entire  loss,  were  sustained.     Smith  v.  Green,  L.  R.  1  C.  P.  D.  92. 

A  fortiori  the  same  rule  applies  where  the  seller  fraudulently  represents  that  the 
animal  sold  is  free  from  disease,  and  the  buyer,  relying  on  the  truth  of  the  repre- 
sentation, places  with  the  diseased  animal  other  animals  of  his  of  the  same  kind, 
which  die  in  consequence.     Mullett  v.  Mason,  L.  R.  1  C.  P.  559. 

The  rule  is  the  same  in  trespass,  see  Jeffrey  v.  Bigelow,  13  Wend.  518;  Barnum 
v.  Van  Dusen,  16  Conn.  200. 


Breach  of  Warranty  on  Sale  of  Stock. 


SUPREME    COURT,  MASSACHUSETTS. 

[1870.]         Woodward  v.  Powers  (105  Mass.  108.) 

In  an  action  on  a  guaranty  that  stock  sold  should  he  worth  a  certain  sum,  market  value, 
within  one  year  from  date,  the  plaintiff  contended  that  the  measure  of  damages  was 
the  difference  between  the  sum  and  the  market  value  at  the  end  of  the  year ;  the 
defendant  contended  that  it  was  the  difference  between  said  sum  and  the  highest 
value  the  stock  reached  in  the  market  during  the  year.  Held,  that,  as  between  the 
two  measures,  the  latter  was  correct. 

Contract  on  a  written  guaranty,  dated  September  2,  1868,  that 
twenty  shares  of  stock  in  the  Merchants'  Union  Express  Company, 
sold  by  the  defendant  to  the  plaintiff,  should  be  "worth  $700, 
market  value,  within  one  year  from  date." 

The  plaintiff  held  the  stock  during  the  year,  and  at  the  expira- 
tion thereof  sold  it. 

The  plaintiff  contended  that  the  defendant  was  liable  to  pay  him 
the  difference  between  the  market  value  of  the  stock  at  the  end  of 


WOODWARD   v.   POWERS.  547 

the  year,  and  $700.  The  defendant  contended  that  he  was  only 
liable  to  pay  the  difference  between  the  highest  market  value  of 
the  stock  at  any  time  during  the  year,  and  $700.  The  highest  price 
reached  by  the  stock  during  the  year  was  $500,  and  its  market  value 
at  the  end  of  the  year  was  $330. 

The  case  was  submitted  on  agreed  facts,  of  which  the  above  is 
all  that  is  material,  to  the  judgment  of  the  Superior  Court,  and,  on 
appeal,  of  this  court. 

"Wells,  J. — The  only  question  in  this  case  relates  to  the  measure 
of  damages  for  breach  of  a  warranty,  or  guaranty,  in  a  sale  of  certain 
shares  of  stock.  The  warranty  was,  that  the  stock  would  be  "  worth 
$700,  market  value,  within  one  year  from  date."  The  plaintiff 
claims  the  whole  deficiency  upon  a  sale  of  the  stock  at  the  end  of 
the  year.  The  defendant  contends  that  the  difference  between  $700 
and  the  highest  price  which  the  stock  reached  in  the  market,  at  any 
time  during  the  year,  is  the  true  measure.  The  agreed  facts  furnish 
no  elements  for  estimating  the  damages,  unless  one  or  the  other  of 
these  two  measures  be  adopted. 

The  general  rule  of  damages  is  the  difference  between  the  value 
of  the  property,  as  described  by  the  warranty  or  representations 
made  upon  the  sale,  and  its  value  as  it  was  in  fact,  or  proved  to 
be  at  the  time  to  which  the  warranty  or  representations  related. 
The  difficulty  of  applying  that  rule  to  the  present  case  is,  that  the 
warranty  here  is  not  of  any  essential  quality  or  value  in  the  article 
itself,  but  rather  of  the  state  of  the  market,  or  the  estimate  of  this 
particular  stock  in  the  market. 

The  contract  is  not  that  the  stock  shall,  during  the  year,  reach 
the  specified  value  in  market,  and  continue  to  be  of  that  value  for 
any  length  of  time  thereafter.  It  is  not  an  agreement  to  indemnify 
the  purchaser  for  his  loss  upon  a  resale  at  the  end  of  the  year.  A 
resale  then,  or  at  any  other  time,  is  not  necessarily  to  be  implied 
from  the  terms  of  the  writing ;  nor  was  it  requisite  as  a  foundation 
of  this  action.  The  jnaintiff's  loss,  upon  a  resale  at  the  end  of  the 
year,  is  not  therefore  the  measure  of  the  defendant's  liability. 

It  is  true  that  the  contract  was  not  broken  until  the  end  of  the 
year.  But  the  contract  was  not  that  the  stock  should  be  worth 
$700  in  market  value  at  that  time.  And  if  it  were,  it  would  not 
follow  that  the  difference  would  be  the  measure  of  damages,  without 
something  in  the  contract  to  show  that  a  sale  at  that  time  was  con- 
templated by  the  parties.  Suppose,  for  instance,  that  the  stock  had 
remained  below  $500  in  market  price  through  the  year,  but  rose  to 
$700  within  a  week  afterwards  ;  the  stock  not  having  been  sold  in 


548  WARRANTIES. 

the  mean  time.  The  purchaser  could  not  be  said  to  have  suffered 
damages  to  the  amount  of  $200  by  reason  of  the  non-fulfillment  of 
the  warranty  in  respect  of  time  merely.  But  where  the  contract 
does  not  provide  for  nor  imply  a  resale,  the  purchaser  cannot  fix  the 
amount  of  damages  by  a  sale  without  the  concurrence  of  the  other 
party,  or,  at  least,  notice  to  him. 

It  is  urged  that  if  the  stock  had  reached  the  value  in  market  of 
$700,  the  plaintiff  might  have  sold  without  loss ;  whereas  he  could 
not  sell  at  $500  without  the  risk  of  bearing  the  loss  himself,  if  the 
stock  should  subsequently  advance  in  price  during  the  year.  But 
non  constat  that  he  would  have  sold  sooner  than  he  did,  even  if  the 
stock  had  reached  the  price  of  $700  in  the  market.  It  was  at  his 
own  option,  and  not  at  the  control  of  the  defendant,  whether  to  sell 
or  not  at  $500.  It  is  no  more  unreasonable  that  he  should  bear  the 
risk  of  loss  from  a  subsequent  rise  in  the  market,  in  case  he  should 
elect  to  sell,  than  it  is  that  he  should  throw  upon  the  defendant  the 
risk  of  a  fall  in  the  price  by  omitting  to  sell. 

Applying  the  general  rule  of  damages  to  this  case,  as  nearly  as 
practicable,  the  problem  would  be  stated  thus  :  The  defendant's 
warranty  is  that  the  stock  would  be  worth  $700  market  value  with- 
in one  year ;  the  stock  sold  was  in  fact  worth  only  $500  in  market 
during  the  year ;  what  difference  in  value  does  that  comparison 
indicate  ? 

The  difficulty  of  estimating  in  damages  the  effect  of  the  breach 
of  a  warranty  or  representation  of  this  character  is  not  a  reason 
against  its  application  (Morse  v.  Hutchins,  102  Mass.  439). 

In  this  case,  both  parties  assume  that  the  damages  are  to  be 
measured  by  the  difference  between  $700  and  the  market  price  of 
the  stock  at  some  period  during  the  year ;  either  when  it  was  high- 
est, or  at  the  end  of  the  year.  We  think,  therefore,  that  the  differ- 
ence between  the  highest  market  value  reached  by  the  stock  within 
the  year,  and  the  value  named  in  the  defendant's  guaranty,  may  be 
taken  as  the  proper  measure  of  damages  which  the  plaintiff  is  en- 
titled to  recover.  The  damages  awarded  in  the  Superior  Court  must 
be  reduced  accordingly. 


RICHARDSON   v.   DUNK  519 

FRAUDS. 

Fraudulent  Representations  ;  Proximate  Damages  ;  Costs. 


COURT    OF    COMMON    PLEAS. 

[1360]      Richardson  v.  Dunn  (30  L.  J.  R.  K  S.  [0.  P.]  44 ;  2 
L.  T.  R.  1ST.  S.  430  ;  8  0.  B.  N.  S.  653). 

The  plaintiff  being  in  treaty  with  C.  for  the  purchase  of  the  good-will  of  a  business  was  re; 
ferred  to  B.  for  the  particulars  of  the  returns  of  such  business.  The  defendant,  whom 
the  plaintiff  sent  to  B.  fur  such  particulars,  represented  to  the  plaintiff  that  B.  had 
told  him  that  the  returns  were  of  a  certain  value,  whereupon  the  plaintiff  concluded 
his  purchase.  The  value  being  afterwards  found  to  be  much  less  than  had  been  so 
represented,  the  plaintiff,  without  further  inquiry,  sued  C.  for  a  false  representation, 
but  failed  in  such  action,  on  the  ground  that  no  such  representation  had,  in  fact, 
been  made  by  either  B.  or  C.  In  an  action  against  the  defendant  for  so  filsely  rep- 
resenting what  B.  had  told:  Held,  that  the  plaintiff  was  not  entitled  to  recover  as 
damages  the  costs  of  the  action  against  C,  as  such  were  not  the  natural  and  proxi- 
mate consequence  of  such  false  representation  by  the  defendant. 

The  declaration  stated  that  the  plaintiff  having  in  consideration 
whether  he  would  buy  the  good-will  of  a  certain  public-house,  then 
occupied  by  one  Mary  Clifton,  and  being  desirous  of  obtaining  in- 
formation with  reference  to  the  value  of  the  said  good-will,  and  hav- 
ing requested  the  defendant  to  call  upon  one  William  Bayliss,  a 
friend  and  referee  of  the  said  Mary  Clifton,  and  to  obtain  from  him 
for  the  information  of  the  plaintiff  the  particulars  of  the  returns  in 
the  sale  of  beer  and  other  things  in  the  said  public-house,  the  de- 
fendant, by  falsely  and  fraudulently  representing  to  the  plaintiff  that 
he  (the  defendant)  had  obtained  from  the  said  W.  Bayliss  certain  in- 
formation, to  wit,  that  the  said  W.  Bayliss  had  taken  the  said  returns 
for  the  then  last  three  years,  and  that  they  would  average  for  the 
then  last  year  8/.  per  day,  and  for  the  two  previous  years  about  101. 
per  day,  induced  the  plaintiff  to  buy  from  the  said  Mary  Clifton  the 
good-will  of  the  said  public-house  for  a  much  larger  sum  than  the 
same  was  worth,  the  takings  of  the  same  having  been  greatly  less 
than  the  amount  so  said  to  have  been  mentioned  by  the  said  W. 
Bayliss,  and  also  to  become  the  tenant  thereof,  instead  of  the  said 
Mary  Clifton  ;  whereas,  in  fact,  the  said  representation  by  the  de- 
fendant was  untrue,  as  the  defendant  knew,  whereby  the  plaintiff 
has  not  only  lost  a  large  sum  of  money  which  he  paid  for  the  said 
good-will  beyond  its  real  value,  but  he  has  been  obliged  to  resell  the 


550  FRAUDS. 

same  at  a  great  loss,  and  to  give  up  the  occupation  of  the  said  house 
at  srreat  loss  and  inconvenience  ;  and  he  has  also  incurred  and  be- 
come  liable  to  pay  a  large  sum  of  money  for  the  costs,  charges  and 
expenses,  as  well  of  himself  as  of  the  said  Mary  Clifton,  in  an  action 
afterwards  brought  by  him  in  reliance  on  the  said  representation  of 
the  defendant  against  the  said  Mary  Clifton,  in  Her  Majesty's  Court 
of  Common  Pleas  at  Westminster,  charging  her  with  having  falsely 
made  and  authorized  the  representation  that  the  takings  of  the  said 
house  were,  during  the  period  above  mentioned,  of  the  amount  above 
particularly  mentioned,  and  with  having  so  induced  the  plaintiff  to 
purchase  the  said  good-will  and  become  the  tenant  of  the  said  house, 
in  which  action  the  verdict  was  for  the  said  Mary  Clifton  ;  and  the 
plaintiff  has  been  otherwise,  by  reason  of  the  said  false  representa- 
tion of  the  defendant,  greatly  damaged,  inconvenienced  and  injured, 
and  has  for  a  long  time  been  thrown  out  of  trade  and  business,  and 
has  incurred  other  expenses  with  reference  to  the  purchase  of  the 
said  good-will  and  occupation  of  the  said  house,  which  he  would  not 
have  incurred  had  he  known  the  said  representation  of  the  defend- 
ant to  be  untrue. 

Plea — Not  guilty.     Issue  thereon. 

The  cause  was  tried  before  Byles,  J.,  at  the  London  Sittings  af- 
ter Hilary  Term,  1860.  The  following  are  the  circumstances  out  of 
which  the  action  arose  :  In  August,  1858,  the  plaintiff,  who  was  a 
licensed  victualler,  employed  a  Mr.  Hullah  to  look  out  for  a  public- 
house  for  him,  who  recommended  him  to  view  the  "  New  Inn,"  at 
Farnborough,  of  which  a  Mrs.  Clifton  was  the  tenant.  The  plaintiff 
accordingly  went  there,  and  the  defendant,  who  was  an  auctioneer, 
showed  him  the  house,  and  told  him  that  Mrs.  Clifton,  who  was  too 
unwell  to  see  the  plaintiff,  had  referred  him  to  her  friend,  Mr.  Bay- 
liss,  of  Twickenham,  for  every  particular  about  the  trade.  The 
plaintiff  having  on  that  occasion  requested  the  defendant  to  commu- 
nicate with  Bayliss,  and  to  let  him  have  the  particulars  afterwards, 
received  from  the  defendant  a  letter  containing  the  representation  as 
to  the  returns  stated  in  the  declaration.  Upon  the  faith  of  this  rep- 
resentation the  plaintiff  purchased  the  good-will  and  took  possession 
on  the  1st  of  October,  1858,  and  carried  on  the  trade  there  for  seven 
months,  when,  finding  the  takings  were  much  less  than  had  been 
represented,  and  not  being  able  to  induce  Mrs.  Clifton  to  take  back 
the  property  or  to  make  compensation,  he  brought  an  action  against 
her  for  a  false  representation  as  to  the  business  done.  On  the  trial 
of  that  action  the  defendant  was  called  as  a  witness  for  the  plaintiff, 
but  Bayliss,  stating  that  he  had  not  authorized  any  such  representa- 


RICHARDSON  y.   DUNN.  551 

tion  to  be  made,  and  Mrs.  Clifton  herself  giving  evidence  that  she 
liad  not  sanctioned  such  a  statement,  a  verdict  was  found  for  her. 
Whereupon  the  present  action  was  brought,  in  which  the  plaintiff 
sought  to  recover  as  damages  {inter  alia),  1811.  8s.  6d.,  of  which  111. 
10s.  Gd.  were  the  taxed  costs  of  Mrs.  Clifton  in  the  action  against 
her,  which  the  plaintiff  had  been  obliged  to  pay,  and  1031.  18s.  the 
amount  of  the  plaintiff's  own  costs  in  that  action.  It  appeared  that 
a  portion  of  such  last-mentioned  costs  was  incurred  by  the  postpone- 
ment of  the  trial  in  consequence  of  the  present  defendant's  illness 
and  inability  to  attend  as  a  witness.  The  jury  found  that  the  de- 
fendant had  falsely  and  fraudulently  made  the  representation  com- 
plained of ;  and  they  found  a  verdict  for  the  plaintiff  for  5817.  8*.  Gd., 
including  in  such  damages  the  above  sum  of  1811.  8s.  Gd. 

A  rule  nisi  was  afterwards  obtained  to  reduce  the  verdict  by  that 
sum  of  1811.  8s.  Gd.,  on  the  ground  that  the  costs  of  the  previous  ac- 
tion were,  as  damages,  if  any,  too  remote. 

After  argument  for  and  against  the  rule,  the  following  opinions 
were  delivered : 

Erle,  C.  J. — I  am  of  opinion  that  this  rule  should  be  made  abso- 
lute. The  question  is,  whether  the  damage  sustained  by  the  plaintiff 
by  the  loss  of  the  action  he  brought  against  Mrs.  Clifton  is  the  natu- 
ral and  proximate  consequence  of  the  representation  made  by  the 
defendant  to  the  plaintiff.  I  do  not  find  any  case  of  damages  like 
these  being  recoverable,  and  I  think  that  if  we  were  not  to  make 
this  rule  absolute,  we  should  be  introducing  a  wider  rule  on  the  sub- 
ject than  any  that  has  hitherto  existed.  The  facts  in  this  case  are, 
that  the  plaintiff',  on  the  faith  of  a  representation  by  the  defendant 
of  what  Bayliss  told  him  were  the  takings  of  the  house,  was  led  into 
making  the  contract  with  Mrs.  Clifton  for  the  purchase  of  the  good- 
will. The  plaintiff  afterwards  found  that  the  takings  were  not  so 
great  as  had  been  represented,  and  he  thereupon  brought  his  action 
against  Mrs.  Clifton.  In  that  action  it  was  necessary  for  the  plaint- 
iff to  establish  that  Mrs.  Clifton  had  represented  that  the  takings 
were  from  81.  to  101.  a  day,  and  that  she  knew  such  representation 
was  false.  The  plaintiff  having  failed  to  prove  this,  and  conse- 
quently having  failed  in  his  action  against  Mrs.  Clifton,  has  brought 
the  present  action,  in  which  he  seeks,  also,  to  recover  as  damage  the 
costs  of  the  fruitless  action  against  Mrs.  Clifton.  Such  damage  does 
not,  however,  seem  to  me  to  be  the  natural  consequence  of  what  the 
defendant  stated.  It  did  not  follow  from  anything  said  by  the 
defendant  that  Mrs.  Clifton  knew  that  the  representation  as  to  the 
takings  was  false,  and,  in  fact,  it  turned  out  that,  not  only  did  she 


552  FRAUDS. 

not  know  it  to  be  false,  but  that  she  never  made  it  at  all.  Although 
it  would  be  right  to  hold  the  defendant  responsible  for  damages 
which  were  the  natural  and  proximate  consequence  of  what  he  rep- 
resented, it  would  not,  I  think,  be  right  to  make  him  liable  for  the 
costs  of  an  action  which  the  plaintiff  rashly  and  improvidently 
brought  against  Mrs.  Clifton.  The  plaintiff  would  have  a  right,  no 
doubt,  to  assume  that  the  defendant  told  him  the  truth,  but  that 
would  form  no  cause  of  action  against  Mrs.  Clifton,  unless  she  knew 
that  the  representation  so  made  was  false.  There  is  a  marked  dis- 
tinction between  a  false  assertion  of  an  agent,  such  as  was  made  in 
this  case,  and  a  false  assertion  that  the  agent  has  authority  to  make 
the  contract.  There  was  a  peculiarity  in  the  circumstances  of  the 
case  of  Randell  v.  Trimen,  because,  on  the  plaintiff's  informing  the 
defendant  that  Ireland  denied  his  liability,  the  defendant  told  them 
they  might  safely  go  on  with  their  action.  But,  independently  of 
that,  I  agree  that  where  an  agent  professes  to  have  authority,  he  is 
liable,  on  the  ground  that  he  warrants  that  he  has  such  authority.  I 
think,  therefore,  that  if  a  contract  is  made  in  consequence  of  the- 
agent  representing  that  he  had  authority,  it  is  a  natural  consequence 
that  an  action  should  be  brought  on  such  contract.  So  in  Collen  v. 
Wright  the  liability  of  the  agent  to  the  damages  was  founded  on  the 
breach  of  the  contract  which  he  himself  had  made.  In  the  present 
case  the  damages  are  not,  I  think,  the  natural  result  of  the  repre- 
sentation made  by  the  defendant ;  and,  therefore,  this  rule  ought  to- 
be  made  absolute. 

"Williams,  J. — I  am  of  the  same  opinion.  Considering  what  the 
representation  was  which  the  defendant  made,  and  what  was  the  ac- 
tion which  was  brought  by  the  plaintiff  against  Mrs.  Clifton,  it  seems 
to  me  that  the  course  he  took  in  bringing  such  action  was  not  what 
a  reasonable  man  would  have  taken  in  consequence  of  such  repre- 
sentation ;  and,  therefore,  the  defendant  ought  not  to  be  responsible 
for  it. 

Btles,  J. — I,  also,  am  of  the  same  opinion.  In  the  comments 
made  by  my  brothers  Keating  and  Willes,  in  the  notes  to  Yicars  v. 
Wilcox,  I  observe  it  is  said,  where  a  tort  is  committed,  "  The  dif- 
ficulty of  laying  down  any  principle  upon  which  the  measure  of 
damages  is  to  be  ascertained  beyond  a  strict  adherence  to  the  natural 
and  proximate  consequences  of  the  act  complained  of,  is  confessed  to 
be  insurmountable."  Is,  then,  the  amount  of  the  damages  which  the 
plaintiff  has  sustained  the  natural  and  proximate  consequence  of  the 
fraud  committed  by  the  defendant '?  I  am  of  opinion  that  it  is  not, 
especially  when  one  sees  the  many  tilings  which  must  have  inter- 


PAGE   v.   PARKER.  555 

vened  before  any  of  such  damages  were  sustained.  In  the  first 
place,  the  plaintiff  takes  the  house  without  any  inquiry  either  of 
Mrs.  Clifton  or  of  Bayliss ;  and  in  the  next  place  he  stays  in  it  sev- 
eral days,  and  then,  without  communicating  with  or  consulting  the 
defendant  (as  was  done  by  the  plaintiff  in  Randell  v.  Trimen),  he 
commences  an  action  against  Mrs.  Clifton,  which  might  have  been 
predicated  as  likely  to  fail,  and  which  accordingly  did  fail.  Now,  all 
these  things  must  concur  as  steps  leading  to  the  damages  ;  therefore, 
it  is  evident  that  the  damages  are  not  either  the  proximate  or  natu- 
ral consequence  of  the  defendant's  misrepresentation,  and  ought  not 
to  be  allowed  in  this  action.  I  observe  that  one  of  the  very  items  of 
the  plaintiff's  costs  sought  to  be  recovered  as  such  damages  arose 
from  the  postponement  of  the  trial  in  the  action  against  Mrs.  Clifton 
in  consequence  of  the  defendant's  illness  and  inability  to  attend  as  a 
witness.  Now,  these  were  damages  which,  at  all  events,  could  not  be 
allowed,  as  they  could  not  have  been  contemplated  by  any  one :  but 
then,  if  these  could  not  be  allowed,  where  is  one  to  stop  % 
Rule  absolute. 


Deceit;    Difference    between    Real    and   Represented  Value;. 
Price  Paid  as  Evidence  of  Yalue. 


SUPREME   JUDICIAL   COURT,    NEW    HAMPSHIRE. 

[1861.]  Page  v.  Parker  (43  N.  H.  303). 

In  an  action  for  deceit  and  fraud  in  the  sale  of  property,  where  the  purchaser  retains  it, 
and  where  numerous  misrepresentations  in  relation  to  the  property,  or  in  relation 
to  several  distinct  particulars  or  qualities  of  the  property  are  found  to  have  been 
made  by  the  vendor,  some  of  which  may  be  material  and  others  immaterial,  some 
fraudulent  and  others  honestly  made,  though  all  are  false  in  fact,  the  rule  of  damages 
is  the  difference  between  the  actual  value  of  such  property  and  its  value  as  it  would 
have  been  if  it  had  been  such  as  it  was  represented  to  be  in  those  particulars  con- 
cerning which  the  false  and  fraudulent  representations  were  made  on  which  the  ver- 
dict was  founded. 

In  such  case,  the  price  paid  is  stroDg  but  not  conclusive  evidence  of  the  value  of  the 
property  as  it  was  represented  to  be,  whether  such  representations  were  fraudulently 
or  honestly  made,  provided  they  were  material. 

The  rule  of  damages,  in  cases  of  warranty  and  of  deceit  and  fraud  in  the  sale  of  property, 
is  the  same  only  when  the  warranty  in  the  one  case  covers  those  qualities  and  prop- 
erties of  the  article  sold,  and  those  only,  concerning  which  the  misrepresentations  in 
the  other  case  are  material  and  fraudulent  as  well  as  false. 


554 


FRAUDS. 


This  was  an  action  on  the  case,  brought  by  David  Page  against 
David  M.  Parker,  William  M.  Parker,  and  Henry  "W.  Keding,  for 
conspiring  together  to  cheat  and  defraud  the  plaintiff,  and  defrauding 
him  by  selling  to  him  at  a  price  greatly  exceeding  its  value,  two-thirds 
of  a  certain  soap-stone  quarry,  in  Haverhill,  N.  H.,  together  with 
some  personal  property  connected  therewith.  The  first  and  third 
counts  in  the  declaration  were  stricken  out  before  going  to  the  jury. 
The  second  count  is  made  a  part  of  this  case.  A  nonsuit  was  moved 
as  to  David  M.  Parker,  on  the  ground  that  there  was  no  evidence 
tending  to  charge  him.  The  motion  was  denied  and  the  defendants 
excepted. 

It  was  proved  that  David  M.  Parker  was  the  owner  of  the  quarry, 
and  the  brother  of  "William  M.  Parker.  It  was  also  proved  that 
David  M.  Parker  himself  executed  the  deeds  to  Reding  and  Page, 
and  caused  them  to  be  deposited  with  Mr.  Felton,  in  accordance  with 
said  agreements;  the  one  to  Page  being  executed  October  2,  1856, 
and  the  one  to  Reding  being  executed  October  4,  1856.  There  was 
evidence  to  show  that  all  the  material  representations  set  forth  in  the 
declaration  were  made  directly  by  "William  M.  Parker  and  Reding  to 
Page,  and  that  Reding,  although  he  received  a  deed  of  one-third  of 
the  quarry,  and  represented  himself  to  Page  as  a  joint  purchaser  with 
him,  was,  in  fact,  assisting  the  Parkers  to  make  a  trade,  and  paying  no 
money  for  his  third ;  and  that  Page  knew  nothing  of  the  real  posi- 
tion of  Reding  in  the  transaction ;  representing  that  the  quarry  was 
worth  from  $25,000  to  $30,000— a  great  bargain  at  15,000— but  con- 
cealing from  Page  the  material  fact  that  they  were  actually  selling 
the  premises  at  $10,000. 

The  defendants'  counsel  requested  the  court  to  instruct  the  jury 
that  if  they  believed  the  defendants  to  have  made  false  and  fraudulent 
representations  to  the  plaintiff,  in  respect  to  only  one  material  matter 
affecting  the  value  of  the  property  sold,  the  jury  should  assess  dam- 
ages only  in  respect  to  that  one  matter ;  and  thereupon  the  plaintiff's 
counsel  requested  the  court  to  instruct  the  jury  that  if  they  found  that 
the  defendants  conspired  and  agreed  together  to  cheat  and  defraud 
the  plaintiff,  and  made  any  material  representation  to  the  plaintiff 
that  was  false,  fraudulent,  and  made  for  the  purpose  of  carrying  out 
said  conspiracy,  then  the  jury  would  be  justified  in  finding  the  de- 
fendants guilty. 

The  court,  however,  referring  to  the  rule  of  damages  as  adjudged 
in  this  case  at  a  former  trial,  gave  it  as  their  guide  in  the  present  case, 
that  when  the  purchaser  retained  the  property,  if  the  jury  found  for 
the  plaintiff,  they  might  assess  in  his  favor,  as  damages,  the  difference 


PAGE   v.   PARKER.  555 

between  the  actual  value  of  the  property  purchased,  and  its  value  as 
represented  to  be  at  the  time  of  the  sale,  the  price  paid  being  very 
strong  but  not  absolutely  conclusive  evidence  of  the  value  of  the 
property  as  it  was  represented  to  be.  Upon  the  subject  of  damages, 
the  court  declined  to  instruct  otherwise  than  as  above  stated. 

The  jury  having  returned  against  the  defendants  their  verdict  for 
the  sum  of  $10,800  72,  the  defendants  moved  to  set  the  same  aside 
and  for  a  new  trial  for  the  causes  assigned.  They  also  moved  in 
arrest  of  judgment  on  account  of  the  insufficiency  of  the  plaintiff's 
declaration,  and  the  questions  of  law  were  reserved. 

Sargent,  J.  (after  holding  that  the  action  was  maintainable). — 
Upon  the  former  trial  of  this  case,  at  the  trial  terra,  the  court  in- 
structed the  jury  that  the  measure  of  damages,  if  they  found  for  the 
plaintiff,  "  was  the  difference  in  the  value  of  the  property  as  it  actu- 
ally was,  and  its  value  as  it  would  have  been  if  it  were  such  as  it  was 
represented  to  be,  in  those  particulars  in  relation  to  which  the  false 
and  fraudulent  representations  were  made,  on  which  the  verdict  was 
founded"  (40  ~N.  H.  58).  And  these  instructions  are  held  to  be  sub- 
stantially correct,  in  the  opinion  formerly  delivered  in  this  case,  with 
the  qualification  that  the  price  paid  should  be  taken  as  very  strong, 
though  not  absolutely  conclusive  evidence  of  the  value  of  the  prop-  ' 
erty  as  it  was  represented  to  be.  This  qualification  seemed  necessary, 
else  the  damages  might  often  be  much  larger  than  the  whole  amount 
of  the  purchase-money,  and  the  purchaser  keep  the  property  beside. 

Let  us  suppose  that  in  a  given  case  the  representations  should  be 
that  the  stone  from  a  certain  quarry  was  worth  $20  per  ton,  and 
would  bring  that  price  in  the  market ;  that  $10  per  ton  would  cover 
all  expenses  of  working,  quarrying,  and  transporting  the  same  to 
market ;  that  the  quarry  was  extensive  enough  so  that  one  hundred 
men  could  work  to  advantage  upon  it  all  the  time,  and  that  they 
could  get  out  eight  and  one-third  tons  of  the  stone  per  month,  each 
man  ;  that  the  supply  was  sufficient  to  last,  when  worked  at  that  rate, 
ten  years,  without  extra  expense  of  working,  and  that  the  demand 
would  and  must  necessarily  keep  in  advance  of  the  supply  for  that 
length  of  time.  These  being  the  representations,  suppose  the  pur- 
chaser, relying  upon  them  all,  and  equally  upon  each,  makes  the  pur- 
chase at  $50,000,  and  it  proves  that  all  these  representations  are  false 
and  fraudulent  in  every  particular,  and  that  the  quarry  is  perfectly 
worthless;  and  now  the  purchaser,  having  paid  his  money  for  the 
quarry,  brings  his  suit  for  damages.  By  what  rule  shall  his  damages 
be  assessed  ?  Shall  he  recover  the  difference  between  the  value  of 
the  quarry  as  it  was  represented  to  be  by  the  vendor,  and  its  ac- 
tual value  ? 


556  FRAUDS. 

Its  value  as  represented,  could  be  seen  by  a  brief  calculation  :  8£ 
tons  per  month  is  100  tons  per  year  for  each  man.  This,  multiplied 
by  100,  the  number  of  men,  gives  10,000  tons  per  year.  This,  mul- 
tiplied by  10,  the  number  of  dollars  of  net  profit  per  ton,  o-ives 
$100,000  per  year;  and  this,  for  10  years,  gives  $1,000,000.  As 
represented,  it  was  worth  that  amount.  It  is  actually  worth  noth- 
ing. The  damages  cannot  be  the  difference  between  the  value  as 
represented,  and  the  actual  value,  as  the  plaintiff  has  paid  but 
$50,000. 

It  is  evident  that,  although  the  plaintiff  trusted  somewhat  to  all 
the  representations  made,  yet  he  did  not  do  so  to  the  full  extent. 
He  trusts  so  far  to  the  representations  that  he  concludes  to  pay  his 
$50,000  for  the  quarry,  and  that  is  all  he  has  been  damaged.  Hence 
the  necessity  of  making  the  price  paid  strong  evidence  of  the  value 
as  represented  to  be.  In  other  words,  it  is  the  value  which  the  pur- 
chaser was  induced  to  put  upon  the  property  in  consequence  of  the 
fraudulent  representations  made  to  him ;  the  amount  which,  by 
these  misrepresentations,  he  was  induced  to  pay  for  what  has  proved 
to  be  worthless. 

The  court,  in  the  former  decision,  wishing  to  make  this  qualifica- 
tion in  the  instructions  of  the  court  at  the  first  trial,  did  not,  by 
any  means,  intend  to  leave  out  of  view  the  other  qualification  which 
was  there  included,  and  which  is  quite  as  necessary,  in  a  large  class 
of  cases,  to  be  observed  as  any  other.  The  statement  of  the  rule  of 
damages,  as  stated  by  the  judge  who  delivered  the  former  opinion 
in  this  case,  is  correct  only  in  connection  with  the  instructions  that 
were  given  on  the  first  trial,  in  the  court  below,  as  appeared  in 
the  case,  and  which  instructions  are  there  said  to  be  substantially 
correct. 

The  rule  of  damages,  as  stated  in  the  former  opinion  in  this  case, 
without  the  qualification  that  had  been  affixed  at  the  first  trial  be- 
low, is  said  to  be  the  rule  in  ordinary  cases,  or  "under  ordinary 
circumstances"  (40  N.  H.  72).  The  same  rule  had  been  substan- 
tially laid  down  before,  in  Fisk  v.  Hicks  (31  N.  H.  535),  and  numer- 
ous cases  cited,  and  has  been  since  repeated  in  Carr  v.  Moore  (41 
K  H.  131),  and  is  found  in  Stiles  v.  White  (11  Met.  356).  This  rule, 
as  stated,  is  correct  in  a  class,  and  in  much  the  larger  class  of  cases, 
as  will  be  seen  by  examining  the  cases  cited.  Where  there  is  but  a 
single  fraudulent  misrepresentation,  or  upon  only  a  single  point,  or 
in  relation  to  a  single  quality  or  circumstance,  there  this  rule  applies, 
and  needs  no  qualification,  except  that  the  price  paid  is  to  be  evidence 
of  the  value  as  represented  to  be.     And  in  that  class  of  cases,  too, 


PAGE   v.   PARKER.  557 

the  same  rule  applies  in  cases  of  warranty  as  in  actions  for  deceit 
and  fraud,  as  is  said  in  Stiles  v.  White ;  because  the  defendant  can- 
not claim  a  more  favorable  rule  of  damages  on  the  ground  of  his  own 
fraud,  in  an  action  of  deceit,  than  he  would  be  entitled  to  upon  his 
promise  in  a  case  of  warranty.  In  other  words,  that  less  damages 
were  not  to  be  recovered  in  an  action  ex  delicto,  than  in  an  action  ex 
contractu,  for  the  same  subject-matter. 

Take  the  case  of  a  horse,  warranted  sound  and  proving  unsound. 
Then  the  rule  of  damages,  as  stated  in  40  N.  H.  72,  is  correct.  And 
it  would  be  equally  so,  in  case  the  horse  were  represented  sound  when 
known  to  be  otherwise,  in  an  action  for  deceit  and  fraud  in  the  sale. 
But  take  a  case  where  there  are  many  misrepresentations  charged, 
some  of  which  may  be  fraudulent  and  others  not  so,  though  all  may 
be  false  in  fact,  and  have  deceived  the  plaintiff,  and  then  the  rule,  as 
there  stated,  is  not  correct,  without  the  further  qualification,  which 
was  given  at  the  first  trial,  that  the  rule  of  damages  was  the  differ- 
ence between  the  real  value  and  the  value  as  it  was  represented 
to  be,  in  those  particulars  in  relation  to  which  the  false  and  fraud- 
ulent representations  were  made,  on  which  the  verdict  was  founded. 
And  with  that  qualification  the  rule  will  be  the  same  in  cases  of 
warranty  and  deceit,  and  will  be  a  general  rule  that  may  be  applied 
in  all  cases. 

Now,  suppose  the  plaintiff  paid  $11,000  for  a  piece  of  property 
really  worth  only  one  thousand ;  and  we  will  suppose  that  there  were 
misrepresentations  made  in  regard  to  the  quality  of  this  property 
in  ten  different  and  distinct  particulars,  all  of  which  were  material, 
and  each  affected  the  value  of  the  property  equally  with  every  other, 
and  each  influenced  the  purchaser  equally  in  buying  the  property. 
Now,  if  all  these  misrepresentations  were  not  only  falsely  but  fraud- 
ulently made,  then  the  plaintiff  should  recover  as  damages,  in  an  action 
for  deceit  and  fraud  in  the  sale,  $10,000,  just  the  same  as  he  would 
have  been  entitled  to  had  the  action  been  upon  a  warranty  in  all  these 
ten  particulars. 

But  suppose  that  these  misrepresentations  should  be  found  by  the 
jury  to  have  been  made  fraudulently  only  in  relation  to  five  qualities 
or  particulars,  and  ignorantly  and  honestly  in  regard  to  the  other  five 
particulars.  Then  in  this  action  the  plaintiff  could  recover  only 
$5,000,  whereas,  in  a  warranty  upon  all  the  ten  particulars,  he  could 
recover  $10,000.  The  rule  of  damages  in  the  two  cases  is  the  same 
only  when  the  warranty  covers  the  same  ground,  and  no  more,  that 
the  representations  in  the  other  case  do,  which  are  both  false  and 
fraudulent,  and  material ;  and  that  is  as  far  as  the  authorities  go.     A 


558  FRAUDS. 

man  cannot  complain  that  he  is  held  to  the  same  rule  of  damages 
in  case  he  fraudulently  misrepresents  a  certain  quality  of  the  article 
sold,  that  would  apply  if  he  had  warranted  the  article  in  that  same 
particular  in  regard  to  which  the  false  and  fraudulent  representa- 
tion was  made. 

In  the  case  before  us  there  were  many  misrepresentations  alleged, 
and  all  were  alleged  to  be  false  and  fraudulent.  Now,  if  the  jury 
had  found  that  all  these  misrepresentations  were  material,  and  also 
false  and  fraudulent,  then  the  rule  as  given  would  have  been  correct. 
But  suppose  they  found  that  three  of  the  alleged  misrepresentations 
were  upon  matters  immaterial,  that  three  others  were  made  honestly,, 
though  they  proved  to  be  false  in  fact.  Then  all  that  the  plaintiff 
could  have  recovered  would  be  the  damages  he  had  suffered  in  conse- 
quence of  the  four  remaining  misrepresentations  that  were  material 
and  fraudulent,  as  well  as  false.  And  so  if  the  jury  had  found  that 
the  defendants  made  false  and  fraudulent  representations  to  the 
plaintiff  in  respect  to  only  one  material  matter  affecting  the  value  of 
the  property  sold,  they  should  have  assessed  damages  only  in  relation 
to  that  one  matter,  which  would  have  been  in  accordance  with  the  in- 
structions asked  for  by  the  defendants. 

But  these  instructions,  or  any  others  covering  the  same  ground,, 
were  not  given,  but  were  refused  ;  and  the  rule  of  damages  given  to 
the  jury  was  the  difference  between  the  real  value  and  the  value  as 
represented  to  be,  &c. ;  and  no  distinction  was  made  between  repre- 
sentations on  material  and  immaterial  matters,  or  misrepresentations 
fraudulently  or  honestly  made. 

Although,  as  we  have  seen,  proper  directions  had  been  given  as 
to  what  it  was  necessary  to  prove  in  order  to  make  the  defendants 
liable  to  any  damages,  yet  the  rule  for  the  assessment  of  damages  was 
not  properly  qualified  and  defined ;  and,  taking  the  instructions 
given  in  connection  with  those  refused,  the  jury  could  hardly  have 
failed  to  assess  damages  for  all  the  misrepresentations  made,  whether 
material  or  otherwise,  and  whether  honestly  or  fraudulently  made. 

The  instructions  given  at  the  first  trial,  that  the  measure  of  dam- 
ages was  the  difference  in  the  value  of  the  property  as  it  actually 
was,  and  its  value  as  it  would  have  been  if  it  were  such  as  it  was  rep- 
resented to  be  in  those  particulars  in  relation  to  which  the  false  and 
fraudulent  representations  were  made  on  which  the  verdict  was 
founded,  were  substantially  correct,  so  far  as  they  went ;  and  the 
qualification  in  relation  to  the  price  paid  being  evidence  of  the  value 
of  the  property  as  it  was  represented  to  be,  which  was  added  in  the 
former  opinion  in  this  case,  needs  qualifying  as  there  stated,  because 


MORSE   v.    HITTCHINS.  55£ 

we  have  seen  that  no  damage  is  recoverable  for  any  misrepresenta- 
tions upon  immaterial  matters,  however  false.  The  price  paid,  there- 
fore, must  be  evidence  of  the  value  of  the  property  as  it  was  repre- 
sented to  be,  in  those  particulars  only  in  which  the  representations 
were  material,  whether  honestly  or  fraudulently  made. 

The  motion  in  arrest  of  judgment  must  be  overruled,  as  we  see  no 
reason  why  the  present  declaration  is  not  sufficient. 

Yerdict  set  aside,  new  trial  granted. 

Note.— In  the  case  of  Murray  v.  Jennings  (42  Conn.  9),  the  plaintiff  ex- 
changed a  yoke  of  oxen  for  a  horse  of  the  defendant,  worth  $125.  The  horse 
was  unsound,  but  was  fraudulently  represented  by  the  defendant  to  be  sound. 
But  for  the  unsoundness  it  would  have  been  worth  $225.  The  defendant  wanted 
the  oxen  for  beef.  The  plaintiff  valued  them  at  $200,  but  there  appears  to  have 
been  no  evidence  as  to  their  value  other  than  for  beef.  They  were  worth  for 
beef  $100,  and  this  sum  was  assumed,  in  the  opinion  of  the  court,  to  be  their 
general  or  market  value.  The  rule  of  damages  was  held  not  to  be  affected  by 
the  circumstance  that  the  horse  was  actually  worth  more  than  the  oxen,  and  the 
plaintiff  was  held  entitled  to  recover  the  difference  between  the  value  of  the 
horse  as  represented,  and  its  actual  value. 


Deceit. 


SUPREME    COURT,    MASSACHUSETTS. 

[i860.]  Morse  v.  Hutchins  (102  Mass.  439). 

In  an  action  for  false  representations  in  the  sale  of  the  defendant's  interest  in  the  stock 
and  good-will  of  a  firm  of  which  he  was  a  member,  the  measure  of  damages  is  the  dif- 
ference between  the  actual  value  of  the  interest  at  the  time  of  the  purchase  and  its 
value  if  it  had  been  what  it  was  represented  to  be. 

Tort  for  deceit  in  making  false  and  fraudulent  representations  to 
the  plaintiff  touching  the  business  and  profits  of  a  firm  of  which  the 
defendant  was  a  member,  and  thereby  inducing  the  plaintiff  to  buy 
the  interest  of  the  defendant  in  the  stock  and  good-will  of  the  firm. 
Answer,  a  general  denial  and  a  plea  of  a  discharge  in  bankruptcy. 

The  judge  instructed  the  jury  that  "  the  measure  of  damages 
would  be  the  difference  between  the  actual  value  of  the  stock  and 
good-will  purchased  at  the  time  of  the  purchase  and  the  value  of  the 
same  had  the  representation  been  true." 

The  jury  returned  a  verdict  for  the  plaintiff,  and  the  defendant 
alleged  exceptions. 


560  FRAUDS. 

Gkay,  J.  (after  overruling  the  defendant's  objection  to  an  alleged 
misjoinder  of  the  count  in  contract  with  that  in  tort). — The  rule  of 
damages  was  rightly  stated  to  the  jury.  It  is  now  well  settled  that, 
in  actions  for  deceit  or  breach  of  warranty,  the  measure  of  damages 
is  the  difference  between  the  actual  value  of  the  property  at  the  time 
of  the  purchase,  and  its  value  if  the  property  had  been  what  it  was 
represented  or  warranted  to  be  (Stiles  v.  White,  11  Met.  356 ;  Tuttle 
v.  Brown,  4  Gray,  457 ;  Whitmore  v.  South  Boston  Iron  Co.  2  Allen, 
52 ;  Fisk  v.  Hicks,  11  Foster,  535  ;  Woodwards.  Thacher,  21  Verm. 
580  ;  Muller  v.  Eno,  4  Kernan,  597 ;  Sherwood  v.  Sutton,  5  Mason, 
1 ;  Loder  v.  Kekule,  3  C.  B.  K  S.  128  ;  Dingle  v.  Hare,  7  C.  B.  N.  S. 
145  ;  Jones  v.  Just,  Law  Rep.  3  Q.  B.  197).  This  is  the  only  rule 
which  will  give  the  purchaser  adequate  damages  for  not  having  the 
thins1  which  the  defendant  undertook  to  sell  him.  To  allow  to  the 
plaintiff  (as  the  learned  counsel  for  the  defendant  argued  in  this  case) 
only  the  difference  between  the  real  value  of  the  property  and  the 
price  which  he  was  induced  to  pay  for  it  would  be  to  make  any  ad- 
vantage lawfully  secured  to  the  innocent  purchaser  in  the  original 
bargain  inure  to  the  benefit  of  the  wrong-doer ;  and,  in  proportion  as 
the  original  price  was  low,  would  afford  a  protection  to  the  party 
who  had  broken,  at  the  expense  of  the  party  who  was  ready  to  abide 
by,  the  terms  of  the  contract.  The  fact  that  the  property  sold  was 
of  such  a  character  as  to  make  it  difficult  to  ascertain  with  exactness 
what  its  value  would  have  been  if  it  had  conformed  to  the  contract 
affords  no  reason  for  exempting  the  defendant  from  any  part  of  the 
direct  consequences  of  his  fraud.  And  the  value  may  be  estimated 
as  easily  in  this  action  as  in  an  action  against  him  for  an  entire  re- 
fusal to  perform  his  contract. 

Exceptions  overruled. 


SUYDAM   v.   JENKINS.  561 


CON  VERS  [ON.     RULES   OF   HIGHER   INTER- 
MEDIATE  VALUE. 

Eule  of  Higher  Intermediate  Value. 


SUPERIOR    COURT,    NEW    YORK. 

[1850.]  Suydam  v.  Jenkins  (3  Sandf.  [BT.  Y.  Superior  Ot]  041). 

When  the  defendant,  who  recovers  in  replevin,  elects  to  take  judgment  for  the  value  of 
the  goods  replevied,  instead  of  their  return,  he  is  entitled  to  recover  damages' equally 
as  if  he  had  elected  to  have  a  return. 

The  value  which  he  is  to  recover,  is  that  at  the  time  of  the  replevin,  and  not  the  value  at 
the  time  when  he  makes  his  election. 

If  such  value  be  an  insufficient  redress  for  the  injury  sustained  by  the  replevin,  the  de- 
ficiency may  be  made  good  in  the  estimate  of  damages. 

The  general  question,  what  is  the  proper  measure  of  damages,  "the  rule  for  ascertaining 
the  sum  which  the  injured  party  ought  to  recover,  in  all  cases  where  personal  prop- 
erty is  wrongfully  taken  or  detained,  whether  by  force,  by  fraud,  or  by  process  of 
law,"  examined  and  considered  on  principle  and  the  adjudged  cases. 

Where  exemplary  or  vindictive  damages  are  not  recoverable,  the  principles  upon  which 
damages  are  to  be  given  are,  that  the  owner  to  whom  compensation  i3  due,  must  be 
fully  indemnified,  and  the  wrongdoer  must  not  be  permitted  to  derive  any  benefit  or 
advantage  whatever  from  his  wrongful  act. 

The  damages,  when  limited  to  an  indemnity,  will  be  ascertained,  by  adding  to  the  value 
of  the  property  at  the  time  the  owner  is  dispossessed,  the  damages  which  he  is 
proved  to  have  sustained  from  the  loss  of  its  possession. 

Interest  on  the  value  the  property  bore  at  the  time  of  the  injury,  from  that  time  to  the 
time  of  the  trial  or  judgment,  must  always  be  added  to  complete  the  indemnity. 

Compensatory  damages,  in  addition  to  the  interest,  may  be  added  to  the  value,  where  it 
is  proved  that  it  is  necessary  to  afford  a  full  indemnity. 

Such  is  the  case,  where  it  is  shown  that  the  owner  would  have  derived  a  larger  profit 
from  the  use  of  the  property,  than  the  interest  on  its  value  ;  or  that  he  had  contracted 
to  sell  it  to  a  solvent  purchaser  at  an  advance  on  its  market  price;  or  that  when  the 
wrong  was  committed  it  was  on  its  way  to  a  profitable  market,  where  it  would  have 
certainly  arrived.  In  all  which  cases,  the  difference  between  the  value  at  the  time 
of  the  tort,  and  the  advance  which  the  owner  would  have  realized,  had  he  retained 
the  possession,  ought  to  be  added  to  the  value  as  compensatory  damages,  and  interest 
is  allowable  on  the  aggregate.  In  the  case  put,  of  a  greater  profit  than  the  interest, 
the  excess  is  to  be  added  to  the  interest. 

So  where  it  appears  that  the  owner  in  all  probabilit}'  would  have  retained  the  property 
until  the  trial,  and  it  is  then  of  greater  value  than  when  he  was  dispossessed,  the 
difference  is  a  part  of  his  loss,  and  may  be  added  to  the  original  value  to  complete 
his  indemnity. 

The  same  rule  applies,  where  the  evidence  justifies  the  conclusion  that  the  owner,  had  he 
kept  the  possession,  would  have  obtained  a  higher  price  for  it,  subsequent  to  the  tort 
which  deprived  him  of  it. 
36 


5G2      CONVERSION.     RULES   OF   HIGHER   INTERMEDIATE   VALUE. 

Even  where  exemplary  damages  are  not  claimed,  the  sum  which  the  injured  party  is  en- 
titled to  recover,  is  not  in  all  cases  to  be  limited  to  an  indemnity. 

He  is  entitled  to  recover,  in  all  cases,  the  market  value  of  the  property  at  the  time  of  its 
conversion,  with  interest,  even  where  the  amount,  from  special  circumstances,  may 
exceed  that  of  his  actual  loss. 

So  when  the  wrongdoer  has  sold  the  property  for  a  larger  price  than  its  value  at  the 
time  of  its  conversion,  the  difference  must  be  allowed  as  cumulative  damages. 

So  when  the  wrongdoer  retains  the  possession  of  the  property  at  the  time  of  the  trial  or 
judgment,  and  it  is  then  of  greater  value  than  at  the  time  of  its  conversion,  the  dif- 
ference must  be  added  to  the  sum  that  would  be  sufficient  as  an  indemnity. 

It  may,  therefore,  be  stated  as  the  universal  rule,  that  the  amount  to  be  recovered  will 
be  ascertained  by  adding  to  the  value  of  the  property,  when  the  right  of  action 
accrued,  such  damages  as  shall  cover  every  additional  loss  which  the  owner  has  sus- 
tained, and  also  every  increase  of  value  which  the  wrongdoer  has  obtained,  or  has 
it  in  his  power  to  obtain. 

The  highest  price  which  the  property  has  borne  at  any  time  between  its  conversion  and 
the  trial,  cannot,  in  all  cases,  be  the  measure  of  damages,  since  when  it  does  not  ap- 
pear that  this  price  would  have  been  ohtained  by  the  owner,  or  has  been  obtained 
by  the  wrongdoer,  the  damages,  measured  by  this  rule,  would  be  vindictive,  instead 
of  remunerative. 

With  still  less  reason  can  the  value  of  the  property  at  the  time  of  the  trial  be  assumed  as 
the  true  and  sole  measure  of  damages,  since  this  would  cast  the  risk  of  the  depreci- 
ation, deterioration,  or  destruction  of  the  property,  upon  the  innocent  owner. 

The  principles  above  laid  down,  although  not  explicitly  stated,  are  not  only  consistent 
with,  but  deducible  from,  the  adjudged  cases  in  England  and  in  the  United  States,, 
with  the  exception  of  a  few  that  must  be  regarded  as  anomalous. 

The  leading  cases  in  Engl.md  and  in  the  United  States,  bearing  upon  the  subject,  exam- 
ined ;  and  the  rule  of  damages  laid  down  in  West  v.  Wentworth  (3  Cowen  82),  and 
Clark  v.  Pinney,  1  lb.  681  ;  and  the  decision  in  Carpenter  v.  Stevens  (12  Wend.  589), 
considered  at  large  and  disapproved.* 

The  measure  of  damages  is  the  same  in  replevin,  where  the  party  elects  to  take  judgment 
for  the  value  of  the  property,  as  in  the  action  of  trover. 

In  replevin  against  a  sheriff,  for  flour  taken  by  him  on  execution,  on  his  electing  to  take 
judgment  for  its  value,  he  will  be  limited  in  his  recovery  to  the  value  at  the  com- 
mencement of  the  suit,  with  interest  from  that  time;  although  it  appear  that  flour 
between  that  period  and  the  trial  was  worth  about  double  its  then  market  price.  He 
cannot  add,  as  damages,  the  difference  between  the  value  at  the  replevin,  and  the 
highest  subsequent  market  value  up  to  tbe  time  of  the  trial. 

In  actions  of  tort,  the  value  of  the  property,  in  estimating  damages,  is  not  always  to  be 
determined  by  its  market  price.  In  some  cases,  as  of  family  pictures,  plate,  and  the 
like,  its  value  to  the  owner,  by  reason  of  personal  or  family  considerations,  ought  to 
be  considered  by  the  jury,  exercising  both  a  sound  discretion,  and  a  reasonable  sym- 
pathy with  the  feelings  of  the  owner. 

(Before  Duer,  Mason  and  Campbell,  JJ.) 

This  was  an  action  of  replevin  in  the  detinet,  for  five  hundred 
barrels  of  flour,  commenced  in  the  Supreme  Court,  and  transferred 

*  And  see  further  on  the  subject  of  the  rule  of  damages,  Kipp  v.  Wiles  (3  Sandf.  585) ; 
Wilson  v.  Little  (1  Sandf.  351),  s.  c.  on  appeal  (2  Comst.  443);    Beals  v.  Terry  (2  Sandf. 

127). 


SUYDAM  v.   JENKINS.  563 

to  this  court,  having  been  tried  by  a  sole  referee,  on  the  23d  day  of 
December,  1847.  The  only  question  which  was  really  controverted 
on  the  motion  to  set  aside  his  report,  was  that  of  the  amount  of  the 
defendant's  recovery,  and  the  statement  of  the  case  is  limited  to  the 
facts  affecting  that  point,  proved  on  the  trial,  which  were  as  follows  : 

The  defendant,  on  the  25th  day  of  May,  1846,  as  sheriff  of  the 
county  of  Kings,  by  virtue  of  an  execution  against  Norman  PI.  Gil- 
lett,  levied  upon  all  the  flour  in  Gillett's  mill,  including  331  barrels 
of  flour  branded  "  Kingston  Mills  ; "  and  the  same  331  barrels  were 
taken  under  the  writ  of  replevin  in  this  cause  and  delivered  to  the 
plaintiffs  ;  and  that  they  were  so  taken  and  delivered  on  the  2d  of 
June,  1846,  and  no  other  property  was  taken  under  the  replevin. 

That  at  the  time  of  the  sheriff's  levy,  the  value  of  the  flour  re- 
plevied was  $4  56£  per  barrel ;  and  at  the  time  it  was  taken  and  de- 
livered to  the  plaintiffs,  its  value  was  $4  43f  per  barrel. 

That  the  residue  of  the  flour  levied  on  at  the  same  time  bv 
the  sheriff,  which  was  of  the  same  value,  was  sold  on  the  5th  June, 
1846,  under  the  execution,  and  brought  $4  31  per  barrel ;  that  the 
highest  price  which  flour,  like  that  in  question,  has  brought  in  the 
New  York  market  since  the  2d  June,  1846,  is  $9  38  per  barrel ;  and 
that  this  was  in  March,  1847 ;  and  that  the  price  of  flour  of  similar 
quality  was,  on  the  day  of  trial,  $6  25  per  barrel. 

The  plaintiffs  claimed  to  be  the  owners  of  the  flour  replevied,  by 
virtue  of  a  receipt  to  them  in  store  for  500  barrels,  "  Kingston 
Mills,"  given  by  Gillett,  April  16th,  1846.  It  appeared  that  Gillett 
then  had  on  hand  in  his  mill  600  barrels  of  this  brand,  in  different 
places  wherever  it  was  convenient.  That  no  particular  500  barrels 
were  designated  for  the  plaintiff,  out  of  the  600  ;  and  that  before 
the  levy  by  the  sheriff,  Gillett  had  sold  all  of  that  600  barrels,  ex- 
cept forty-six.  He  had,  however,  manufactured  other  flour  of  the 
same  brand,  which  he  intended  to  substitute  to  the  plaintiff  for  that 
sold,  and  the  residue  of  the  331  barrels  replevied,  was  so  manufac- 
tured by  him. 

On  the  plaintiffs  resting  their  case,  the  defendant  moved  for  a 
nonsuit,  upon  the  ground  that  it  was  not  proved  and  did  not  appear, 
either  that  the  flour  taken  upon  the  writ  of  replevin  was  the  prop- 
erty of  the  plaintiffs,  or  that  they  had  the  right  to  the  possession  of 
the  same  or  of  any  part  thereof.  The  referee  granted  the  motion 
for  a  nonsuit ;  and  the  plaintiffs  excepted  to  his  decision. 

The  defendants  then  elected  to  waive  a  return  of  the  flour,  and 
to  take  judgment  in  lieu  thereof  for  its  value. 

The  referee  then  proceeded  to  assess  the  value  of  the  property 


564      CONVERSION.     RULES   OF   HIGHER   INTERMEDIATE   VALUE. 

replevied,  and  the  defendant's  damages  by  reason  of  the  detention 
thereof. 

The  defendant's  counsel  then  asked  the  referee  to  decide,  and  in- 
sisted, that  the  value  of  the  property  was  the  market  price  at  the 
time  of  such  election,  and  that  the  measure  of  damages  was  the  dif- 
ference between  the  value  of  the  flour  at  the  time  of  such  election, 
and  the  highest  value  it  had  borne  at  any  time  after  the  same  was 
replevied,  up  to  the  time  of  the  election,  and  interest  on  the  highest 
value  from  the  time  when  it  bore  the  highest  value  to  the  time  of  the 
election. 

The  referee  decided  that  the  value  was  to  be  ascertained  as  thus 
claimed,  but  refused  to  decide  that  such  was  the  measure  of  damages  ; 
and  the  defendant's  counsel  excepted  to  such  refusal. 

The  plaintiff's  counsel  asked  the  referee  to  decide,  and  insisted, 
that  the  value  of  the  property  was  to  be  assessed  at  the  market  value 
at  the  time  of  the  replevin  ;  and  that  the  damage  for  the  detention 
was  the  interest  on  such  value  from  the  time  of  such  replevin.  The 
referee  refused  so  to  decide  ;  and  the  plaintiff's  counsel  excepted  to 
such  refusal. 

The  referee  decided  to  assess  the  value  of  the  property  at  its 
market  value  on  the  day  of  the  election ;  and  that  the  damage  for 
the  detention  was  the  interest  on  such  value  from  the  time  of  the  re- 
plevin ;  to  which  decision  the  counsel  for  both  parties  excepted. 
The  referee  thereupon  assessed  the  value  of  the  property 

at $2,068  75 

The  damage  for  the  detention  at 169  55 

And  reported  for  the  defendant  for  the  sum  of $2,238  30 

on  the  18th  of  January,  1848. 

A  motion  was  made  by  the  defendants  to  set  aside  the  report,  in 
which  the  points  on  both  sides  were  presented. 

By  the  Court,  Duer,  J. — We  think,  as  we  intimated  upon  the 
hearing,  that  the  referee  was  entirely  right,  in  deciding  that  the 
plaintiffs  had  failed  to  prove  their  title  to  any  portion  of  the  flour 
which  they  replevied.  Their  counsel  judiciously  limited  their  claim 
to  the  forty-six  barrels,  which  he  wished  us  to  consider  as  the  resi- 
due of  the  five  hundred  barrels  originally  sold  or  mortgaged ;  but 
the  five  hundred  barrels  were  themselves  parcel  of  a  larger  quantity, 
and  they  had  not  been  so  selected  and  separated  as  to  enable  the 
plaintiffs  to  identify  any  portion  of  them  as  their  property.  Eapalye 
v.  Mackie  (6  Cow.  250),  fortified  as  it  is  by  the  prior  decisions  which 
are  there  referred  to,  is,  on  this  point,  a  conclusive  authority.     The 


SUYDAM   v.   JENKINS.  565 

defendant  was  therefore  entitled  to  judgment,  and  the  only  question 
is  whether  the  amount  which  he  ought  to  recover,  has  been  justly 
computed  by  the  referee. 

Instead  of  asking  for  a  return  of  the  property  replevied,  the  de- 
fendant elected  to  take  judgment  for  its  value.  The  section  of  the 
statute  (2  R.  S.  531,  §  55),  which  gives  this  election,  is  silent  as  to 
the  damages ;  but  the  understanding  of  the  profession  undoubtedly 
is,  that  whether  the  judgment  be  for  a  return  of  the  goods,  or  for 
their  value,  the  right  to  damages  equally  attaches.  "We  are  satisfied, 
upon  consideration,  that  this  construction  may  reasonably  be  given 
to  the  general  words  in  the  preceding  53d  section ;  and  it  appears  to 
be  sanctioned  by  the  opinion  of  Ch.  J.  Nelson,  in  Snow  v.  Hoys  (22 
"Wend.  601).  It  is  indeed  evident  that  in  whichever  form  the  judg- 
ment is  entered,  damages  are  in  most  cases  necessary  to  be  given,  in 
order  to  complete  the  indemnity  to  which  the  defendant  is  entitled. 
In  the  present  case,  the  referee  has  allowed  damages  in  addition  to 
the  value  of  the  property  ;  and  neither  party  complains  that  he  has 
done  so,  yet  both,  although  upon  very  different  grounds,  insist  that 
he  has  erred  in  computing  the  amount  for  which  judgment  ought  to 
be  rendered.  He  has  assessed  the  value  according  to  the  market 
price  of  flour  at  the  time  the  defendant  made  his  election,  and  has 
allowed,  as  damages,  interest  upon  the  sum  thus  ascertained  from  the 
time  of  the  replevy.  The  counsel  for  the  plaintiffs,  however,  con- 
tends that  the  value  ought  to  be  computed  by  a  reference  to  the 
market  price  of  the  flour  when  replevied ;  and  the  counsel  for  the 
defendant,  that  the  value  is  properly  stated,  but  that  in  the  estimate 
of  damages,  the  difference  between  that  value  and  the  highest  sum 
for  which  the  flour  could  have  been  sold,  at  any  time,  after  the  re- 
plevying and  before  the  defendant's  election,  should  have  been  in- 
cluded. Much  ingenuity  and  learning  have  been  displayed  by  the 
counsel  in  support  of  their  respective  views,  and  it  is  an  act  of  jus- 
tice to  say,  that  the  court  has  been  materially  aided  by  their  labors 
and  researches. 

The  argument  involves  a  general  question  which  in  the  first  in- 
stance we  shall  endeavor  to  solve  ;  and  shall  then  inquire  whether  the 
solution  which  we  adopt  is  consistent  with  the  adjudged  cases  and 
with  the  provisions  of  the  statute. 

The  general  question  which  we  deem  it  necessary  to  examine  is, 
what  is  the  proper  measure  of  damages,  "  The  rule  for  ascertaining 
the  sum  which  the  injured  party  ought  to  recover,  in  all  cases,  where 
personal  property  is  wrongfully  taken  or  detained,  whether  by  force, 
by  fraud,  or  by  process  of  law."     It  is  a  question  of  wide  extent  and 


566      CONVERSION.     RULES   OF   HIGHER   INTERMEDIATE   VALUE. 

corresponding  interest,  and  we  are  not  without  the  hope,  that  the 
observations  which  we  intend  to  make  may  have  some  tendency  to 
redeem  this  branch  of  the  law  from  its  present  state  of  confusion  and 
uncertainty.  Unless  we  are  greatly  mistaken,  there  are  certain  in- 
disputable rules,  or  more  correctly,  principles  of  natural  justice,  by 
the  application  of  which  the  amount  that  the  injured  party  ought  to 
recover,  may,  in  all  cases,  be  readily  and  certainly  determined.  Set- 
ting aside  the  exceptional  cases  in  which  exemplary  damages  may  be 
justly  claimed  and  given,  and  confining  ourselves  to  those  in  which 
the  remedy  sought  is  simply  pecuniary,  the  principles  which,  as  it 
seems  to  us,  are  manifestly  just,  and  universal  in  their  application, 
are,  that  the  owner,  to  whom  compensation  is  due,  must  be  fully  in- 
demnified, and  that  the  wrongdoer  must  not  be  permitted  to  derive 
any  benefit  or  advantage  whatever  from  his  wrongful  act.  It  may 
frequently  happen,  that  these  principles,  when  applied,  will  coincide 
in  the  result ;  but  there  are  many  cases  in  which  it  will  be  seen  that 
the  application  of  both  is  necessary.  An  indemnity  must  always  be 
given  to  the  injured  party ;  but  it  is  not,  in  all  cases,  the  measure  of 
the  damages  which  the  wrongdoer  ought  to  pay. 

First,  the  injured  party  must  be  indemnified,  he  must  be  placed 
in  the  same  situation  in  which  he  would  have  been,  had  the  wrong 
not  been  committed,  or  had  it  been  instantly  repaired  by  the  pay- 
ment of  the  compensation  then  due.  As  the  actual  loss  to  the  owner 
is  the  same,  whatever  may  be  the  form  of  the  action  in  which  its  rep- 
aration is  sought,  the  sum  due  to  him  for  its  compensation  must  be 
the  same,  whether  he  is  the  plaintiff  in  trespass  or  trover,  or  the  de- 
fendant in  replevin.  There  can  be  no  variance  in  the  amount  of  an 
indemnity,  and  if  its  criterion  can  be  fixed,  any  departure  from  the 
standard  which  it  establishes  must  be  capricious  and  arbitrary,  and 
must  involve  more  or  less  of  injustice  to  one  or  other  of  the  parties 
to  the  injury. 

Then  what  are  the  rules?  What  the  process  of  computation  by 
which  the  just  amount 'of  the  indemnity  claimed  may  be  ascertained % 
We  reply,  with  some  confidence,  that  it  will  be  ascertained  in  all 
cases,  by  adding  to  the  value  of  the  property  when  the  owner  is  dis- 
possessed, the  damages  which  he  is  proved  to  have  sustained  from 
the  loss  of  its  possession.  It  is  when  the  property  is  wrongfully 
taken  or  detained,  that  a  right  of  action  accrues  to  the  owner.  He 
is  then  entitled  to  demand  a  compensation  for  his  loss,  and  if  his  de- 
mand is  then  complied  with,  it  is  plain  that  the  value  of  the  prop- 
erty at  that  time,  by  which  we  mean  its  market  value,  the  sum  for 
which  it  could  then  be  sold,  would  constitute,  at  least,  a  portion  of 


SUYDAM  v.   JENKINS.  obi 

the  amount  that  the  wrongdoer  would  be  bound  to  pay.     This  sum 
may,  therefore,  be  fairly  considered  as  a  debt  then  due,  and,  conse- 
quently, interest,  until  the  time  of  trial  or  judgment,  must  in  all 
cases  be  added  to  complete  the  indemnity.     It  is  not,  however,  in  all 
cases  that  the  value  of  the  property  when  the  owner  is  dispossessed 
is  to  be  determined  by  a  reference  to  its  market  price,  nor  in  all  that 
the  damages,  which  are  to  be  added  to  the  value,  are  to  be  limited  to 
the  mere  allowance  of  interest.     In  most  cases,  the  market  value  of 
the  property  is  the  best  criterion  of  its  value  to  the  owner,  but  in 
some  its  value  to  the  owner  may  greatly  exceed  the  sum  that  any 
purchaser  would  be  willing  to  pay.     The  value  to  the  owner  may  be 
enhanced  by  personal  or  family  considerations,   as  in  the  case  of 
family  pictures,  plate,  <fcc,  and  we  do  not  doubt  that  the  " jpretium 
affectionis"  instead  of  the  market  price,  ought  then  to  be  considered 
by  the  jury  or  court,  in  estimating  the  value.     In  these  cases,  how- 
ever, it  is  evident,  that  no  fixed  rule  to  govern  the  estimate  of  value, 
can  be  laid  down,  but  it  must  of  necessity  be  left  to  the  sound  dis- 
cretion of  a  jury,  in  the  exercise  of  a  reasonable  sympathy  with  the 
feelings  of  the  owner.     AVlien  the  market  price  is  justly  assumed  as 
the  measure  of  value,  there  are  numerous  cases  in  which  the  ad- 
dition of  interest  would  fail  to  compensate  the  owner  for  his  actual 
loss.     It  may  be  shown  that  had  he  retained  the  possession,  he  would 
have  derived  a  larger  profit  from  the  use  of  the  property  than  the 
interest  upon  its  value ;  or  that  he  had  contracted  to  sell  it  to  a  sol- 
vent purchaser  at  an  advance  upon  the  market  price ;  or  that  when 
wrongfully  taken  or  converted,  it  was  in  the  course  of  transportation 
to  a  profitable  market,  where  it  would  certainly  have  arrived  ;  and  in 
each  of  these  cases  the  difference  between  the  market  value  when 
the  right  of  action  accrued,  and  the  advance,  which  the  owner,  had 
he  retained  the  possession,  would  have  realized,  ought  plainly  to  be 
allowed  as  compensatory  damages,  and  as  such  to  be  included  in  the 
amount  for  which  judgment  is  rendered.     So  where  it  appears  that 
the  owner  in  all  probability  would  have  retained  the  possession  of 
the  property  until  the  time  of  trial  or  judgment,  and  that  it  is  then 
of  greater  value  than  when  he  was  dispossessed,  the  difference  may 
fairly  be  considered  as  a  part  of  the  actual  loss  resulting  to  him  from 
the  change  of  possession,  and  should  therefore  be  added  to  the  origi- 
nal value  to  complete  his  indemnity. 

The  observations  that  have  now  been  made  are  sufficient  to  ex- 
plain our  views  as  to  the  proper  mode  of  securing  an  indemnity  to 
the  injured  party  ;  but  the  amount  of  the  judgment  that  ought  to  be 
rendered  in  his  favor,  even  when  no  exemplary  damages  are  claimed, 


568      CONVERSION.     RULES   OF  HIGHER   INTERMEDIATE   VALUE. 

as  we  have  already  stated,  is  not  necessarily  to  be  limited  to  an  in- 
demnity. In  many  cases,  it  may  not  be  right  that  the  wrongdoer 
should  be  subjected  to  cnmulative  damages  as  a  penalty  for  his  mis- 
conduct ;  but  it  is  clear,  that  he  ought  never  to  be  permitted  to  de- 
rive an  actual  benefit  from  his  wrongful  act,  a  gain  which  is  the  fruit 
of  his  own  injustice.  He  must,  in  all  cases,  be  compelled  to  refund. 
Hence  he  must,  in  all  cases,  be  liable  to  the  extent  of  the  value  of 
the  property  when  taken  or  converted,  together  with  interest,  even 
when  the  amount  may  greatly  exceed  the  sum  that  would  be  suffi- 
cient to  indemnify  the  owner.  If  goods  uninsured  should  by  force 
or  fraud  be  removed  from  a  warehouse,  which,  immediately  there- 
after, is  consumed  by  fire,  as  they  must  have  perished  had  they  re- 
mained, it  is  certain  that  the  owner  sustains  no  loss  from  the  re- 
moval ;  yet  none  can  suppose,  that,  in  an  action  against  the  wrong- 
doer, the  fact  could  be  given  in  evidence  to  bar  a  recovery,  or  that 
the  recovery  could  be  for  a  less  sum  than  the  value  of  the  goods 
when  removed.  Here,  although  the  judgment  in  its  whole  amount 
is  a  positive  gain  to  the  owner,  yet  it  imposes  no  penalty  in  the  form 
of  exemplary  damages  upon  the  wrongdoer.  It  merely  compels  him 
to  pay  for  that  which  he  had  no  right  to  appropriate,  and  thus  pre- 
vents him  from  deriving  any  benefit  from  his  wrongful  act.  So,  re- 
versing some  of  the  cases  that  have  been  stated,  if  the  goods  when 
wrongfully  taken  or  converted,  were  in  the  course  of  transportation 
to  a  losing  market,  or  were  contracted  to  be  sold  at  a  less  price  than 
their  market  value,  the  owner  would  be  fully  indemnified  by  giving 
him  the  sum  with  interest  which  he  would  have  realized  had  he  re- 
tained the  possession,  yet  it  cannot  be  doubted,  that  the  market  value 
when  the  right  of  action  accrued,  with  interest  from  that  time, 
should  continue  to  be  the  measure  of  damages. 

The  present  case  affords  another  illustration  of  the  same  truth, 
that,  even  when  vindictive  damages  are  not  claimed,  those  which  are 
given  in  many  cases,  may  and  ought  to  exceed  a  mere  indemnity. 
Had  the  defendant  retained  the  possession  of  the  flour,  which  was 
replevied,  it  is  morally  certain  that  it  would  have  been  sold  by  him, 
under  the  execution  in  his  hands,  at  the  same  time,  and  at  the  same 
price,  as  the  residue  of  the  flour  upon  which  he  had  levied.  Hence 
we  should  give  to  him,  or  more  properly  to  the  judgment  creditor 
whom  he  represents,  a  full  compensation  for  the  actual  loss,  by  as- 
sessing the  value  of  the  flour  in  controversy,  at  the  price  for  which 
it  would  have  been  sold,  had  it  not  been  replevied,  and  by  allowing, 
as  damages,  interest  upon  that  amount  from  the  time  the  sale  would 
have  been  made ;  nor  could  any  objection  be  made  to  a  judgment 


SUYDAM   v.   JENKINS.  569 

founded  upon  this  basis,  except  that  it  would  leave  to  the  plaintiffs 
the  difference  between  the  value  of  the  flour  when  replevied,  and  its 
value  at  the  time  of  the  sale  under  the  execution,  as  a  profit  result- 
ing from  their  wrongful  act. 

Even  where  the  market  value  of  the  property,  when  the  right  of 
action  accrued,  would  more  than  suffice  to  indemnify  the  owner,  it  is 
not,  in  all  cases,  that  the  liability  of  the  wrongdoer  should  be  limited 
to  that  amount.  It  is  for  the  value  that  he  has  himself  realized,  or 
might  realize,  that  he  is  bound  to  account,  and  for  which  judgment 
should  be  rendered  against  him.  Hence  should  it  appear  in  evidence 
upon  the  trial,  that  he  had  in  fact  obtained  upon  a  sale  of  the  prop- 
erty a  larger  price  than  its  value  when  he  acquired  the  possession,  or 
that  he  still  retained  the  possession,  and  that  an  advance  price  could 
then  be  obtained,  in  each  case  the  increase  upon  the  original  value 
(which  otherwise  would  remain  as  a  profit  in  his  hands),  ought  to  be 
allowed  as  cumulative  damages. 

We  think  it  follows,  from  the  observations  that  have  been  made, 
and  the  illustrations  that  have  been  given,  that  the  principles  which 
we  have  stated  as  those  which  ought  to  determine  the  amount  of  the 
judgment,  will  be  carried  into  effect  in  all  cases,  by  adding  to  the 
value  of  the  property  when  the  right  of  action  accrued  such  dam- 
ages as  shall  cover,  not  only  every  additional  loss  which  the  owner 
has  sustained,  but  every  increase  of  value  which  the  wrongdoer  has 
obtained,  or  has  it  in  his  power  to  obtain  ;  and  we  are  satisfied,  after 
much  consideration,  that  there  is  no  other  mode  of  computation  by 
which  as  a  universal  and  invariable  rule  the  same  result  can  be  at- 
tained. 

It  seems  to  us  exceedingly  clear,  that  the  highest  price  for  which 
the  property  could  have  been  sold  at  any  time  after  the  right  of  ac- 
tion accrued,  and  before  the  entry  of  judgment,  cannot,  except  in 
special  cases,  be  justly  considered  as  the  measure  of  damages.  When 
the  evidence  justifies  the  conclusion  that  a  higher  price  would  have 
been  obtained  by  the  owner  had  he  kept  the  possession,  or  has  been 
obtained  by  the  wrongdoer,  we  have  admitted,  and  shown  that  it 
ought  to  be  included  in  the  estimate  of  damages  ;  in  the  first  case,  as 
a  portion  of  the  indemnity  to  which  the  owner  is  entitled,  and  in  the 
second,  as  a  profit  which  the  wrongdoer  cannot  be  permitted  to  re- 
tain ;  but  we  cannot  admit  that  the  same  rule  is  to  be  followed 
where  nothing  more  is  shown  than  a  bare  possibility  that  the  highest 
price  would  have  been  realized,  and  still  less  where  it  is  proved  that 
it  would  not  have  been  obtained  by  the  owner,  and  has  not  been  ob- 
tained by  the  wrongdoer.     Its  allowance  in  these  cases  would  in 


570      CONVERSION.     RULES   OF  HIGHER   INTERMEDIATE   VALUE. 

truth  impose  a  penalty  upon  the  wrongdoer  and  render  the  damages 
vindictive,  instead  of  remunerative ;  and  it  must  he  remembered 
that  we  are  treating  exclusively  of  the  cases  in  which  vindictive 
damages  are  not  claimed,  or  if  claimed,  ought  not  to  be  given. 

The  calculation  of  damages  according  to  the  value  of  the  prop- 
erty at  the  time  the  amount  of  the  judgment  is  to  be  settled,  is 
liable  to  similar  objections.  As  a  rule,  it  is  susceptible  only  of  a 
very  partial  application.  For  the  reasons  that  have  already  been 
given,  it  is  applicable  only  where  it  appears,  that  the  possession 
would  have  been  retained  by  the  owner,  or  has  been  retained  by  the 
wrongdoer ;  or  should  it  be  thought  that  its  application  may  be  ex- 
tended beyond  these  cases,  upon  the  ground  that  the  wrongdoer  is 
bound  to  retain  the  possession  so  as  to  enable  him  to  return  the 
property  when  lawfully  demanded  by  the  owner,  it  must  still  be  re- 
stricted to  the  cases  in  which  the  property  continues  to  exist,  and 
has  advanced  in  value.  AVithout  this  restriction,  the  application  of 
the  rule  would  lead  to  palpable  injustice,  since  if  we  are  to  hold  that 
it  is  to  be  applied  in  all  cases  as  the  true  and  only  measure  of  the  in- 
demnity to  which  the  owner  is  entitled,  it  casts  upon  him  the  whole 
risk  of  the  destruction  or  deterioration  of  the  property,  when  pro- 
ceeding from  inevitable  accident  without  any  negligence  or  fault  im- 
putable to  the  wrongdoer.  Hence,  if  the  goods  wrongfully  taken  or 
converted  are  perishable  in  their  own  nature,  and  at  the  time  of  trial 
from  an  inherent  vice  have  wholly  lost  their  value,  the  jury  are  to 
be  instructed  that  nominal  damages  only  can  be  given.  Indeed,  the 
learned  counsel  for  the  defendant  candidly  admitted^  that  the  conse- 
quences which  have  been  stated  would  follow,  when  the  defendant 
in  replevin  elects  to  take  a  judgment  for  the  value  of  the  property, 
instead  of  its  return,  if  the  word  "  value  "  as  used  in  the  statute 
must  be  construed  to  refer  exclusively  to  the  value  of  the  property 
when  the  election  is  made.  But  that  these  consequences  were  con- 
templated by  the  revisers,  or  by  the  legislature,  we  find  it  impossible 
to  believe. 

We  are  next  to  inquire,  whether  the  principles  which  we  have 
laid  down  as  properly  regulating  and  fixing  the  amount  of  a  recov- 
ery, in  all  the  cases  which  this  discussion  embraces,  are  consistent 
with,  or  deducible  from  the  adjudged  cases  in  England  and  in  the 
United  States.  That  they  are  explicitly  stated  in  any  reported  case, 
we  shall  not  venture  to  affirm ;  but  that  they  are  implied  in  many, 
and  are  consistent  with  the  judgment  actually  rendered  in  most  of  the 
«ases,  we  are  fully  .convinced.  There  is,  we  confess,  a  considerable 
want  of  harmony  in  the  decisions,  nor  shall  we  deny  that  there  are 


SUYDAM   v.    JENKINS.  571 

some  which  must  be  rejected  as  wholly  anomalous,  if  the  law  is  ever 
to  be  settled  in  conformity  to  the  views  which  we  have  expressed  ; 
but  it  is  when  the  law  has  been  rendered  uncertain  by  the  conflict  of 
decisions,  that  it  becomes  emphatically  the  duty  of  judges  to  recur 
to  those  first  principles  of  justice  which  lie  at  the  foundation  of 
positive  law,  and  by  the  application  of  which  its  existing  uncer- 
tainty may,  generally  speaking,  be  effectually  removed.  The  law  (in 
the  beautiful  language  of  Lord  Mansfield),  "  works  itself  pure  "  by 
the  fresh  streams  which  it  draws  from  its  original  fountains  of  equity 
and  reason. 

In  trover,  the  general  rule,  both  in  England  and  in  the  United 
States,  undoubtedly  is,  that  the  current  or  market  value  of  property 
at  the  time  of  the  conversion,  with  interest  from  that  time  until  the 
trial,  is  the  true  measure  of  damages  (Amery  v.  Delamere,  1  Strange, 
505  ;  Fisher  v.  Prince,  3  Burr.  136  ;  Finch  v.  Blount,  7  Car.  &  P. 
478  ;  Cooke  v:  Ilartle,  8  Car.  &  P.  568  ;  Mercer  v.  Jones,  3  Camp. 
476  ;  Shotwell  v.  Wendover,  1  J.  E.  65 ;  "Wilson  v.  Conine,  2  Ibid. 
280  ;  Kennedy  v.  Strong,  14  J.  R.  128  ;  Hallett  v.  Novion,  Ibid.  273  ; 
Dillenbach  v.  Jerome,  7  Cow.  294 ;  Baker  v.  Wheeler,  8  Wend.  505  ; 
Stevens  v.  Son,  2  Hill,  132  ;  Watt  v.  Potter,  2  Mason,  76  ;  Kennedy 
v.  Whitmore,  4  Pick.  466  ;  Sargent  v.  Franklin  Ins.  Co.,  8  Pick.  90 ; 
Johnson  v.  Sumner,  1  Met.  172  ;  Barry  v.  Bennett,  7  Ibid.  354 ; 
White  v.  Webb,  15  Conn.  502  ;  Jacobs  v.  Laussat,  6  Sergt.  &  Rawle, 
350 ;  Lillard  v.  Whitaker,  3  Bibb,  92 ;  Sproule  v.  Tor,  3  Litt.  25).  It 
may  be  inferred  from  the  cases,  that  it  is  only  of  late  years,  that  in- 
terest after  the  conversion  has  been  allowed  in  England,  and  that  its 
allowance  now  depends  upon  the  terms  of  the  statute  3  &  4  William 
IV,  c.  42,  §  29,  and  rests  in  a  great  measure  in  the  discretion  of  the 
jury  ;  but  with  us,  interest  is  justly  regarded  as  a  constituent  part  of 
the  indemnity  to  which  the  plaintiff  is  entitled,  and  which  it  is  the 
duty  of  the  court,  and  of  the  jury  under  the  direction  of  the  court, 
to  allow,  although  the  value  of  the  property,  with  interest,  is  the 
usual ;  we  can  by  no  means  admit,  as  has  been  intimated  in  some  of 
the  cases  in  this  State  and  in  Massachusetts,  that  it  is  the  sole  and  in- 
variable, measure  of  damages.  In  England,  the  law  may  be  con- 
sidered as  settled,  that  additional  damages,  if  laid  in  the  declaration, 
and  directly  resulting  from  the  wrongful  act  of  the  defendant,  are 
recoverable  (Davis  v.  Oswell,  7  Car.  &  P.  804  ;  Bodley  v.  Reynolds, 
S  Queen's  Bench  R.  779 ;  Rogers  v.  Spence,  15  Law  Journal,  N.  S. 
52).  And  an  early  decision  to  the  same  effect,  is  found  in  our  own 
reports  (Shotwell  v.  Wendover,  2  J.  R.  65).  It  is  true,  that  in 
Brizee  v.  Maybee  (21  Wend.  144),  Mr.  J.  Cowen,  speaking  as  the  or- 


572      CONVERSION.     RULES   OF   HIGHER   INTERMEDIATE   VALUE. 

gan  of  the  court,  seems  to  have  held  that  under  no  circumstances 
ought  the  jury  to  be  permitted  to  find  special  damages  in  the  action 
of  trover ;  and  the  Supreme  Court  of  Pennsylvania  seems  to  have 
given  its  sanction  to  the  same  doctrine  (Farmers'  Bank  v.  Mackie,  2 
Penn.  St.  R.  318) ;  but  as  this  doctrine,  literally  understood,  in  effect 
denies  the  right  of  the  plaintiff  to  a  full  indemnity,  however  certain 
the  evidence  of  his  loss,  the  language  of  the  learned  judges  ought 
perhaps  to  be  construed  as  only  meaning  special  damages  ought  never 
to  be  allowed,  where,  from  the  nature  of  the  case,  the  estimate  must 
be  uncertain  and  conjectural ;  and  the  doctrine  thus  explained  and 
limited,  we  are  far  from  wishing  to  controvert.  On  the  contrary, 
the  position  that  when  exemplary  damages  cannot  justly  be  claimed, 
those  which  are  purely  hypothetical  and  speculative  ought  not  to  be 
given,  commands  our  entire  assent ;  for  this  is  only  saying,  that 
when  an  indemnity  is  sought,  the  existence  and  amount  of  the  loss 
must  first  be  proved. 

Even  where  no  special  damages  are  laid  in  the  declaration,  the 
market  value  of  the  property  at  the  time  of  its  conversion  is  not  to 
be  regarded,'  in  all  cases,  as  the  exclusive  measure  of  damages.  When 
it  has  appeared,  in  evidence,  that  the  article  of  goods  in  controversy 
had  been  actually  sold  by  the  defendant,  the  plaintiff,  although  he  is 
certainly  not  bound  by  the  price  thus  obtained,  may  yet  elect  to  con- 
sider it  as  evidence  of  the  value,  and  the  jury  may  in  their  discre- 
tion found  their  verdict  upon  this  estimate,  adding  interest  from  the 
time  of  the  sale  (Finch  v.  Blount,  7  Car.  &  P.  478  ;  Whitehouse  v. 
Atkinson,  3  Carr.  &  P.  347;  Selleck  v.  Smith,  3  Bing.  602).  It 
must  be  admitted,  that  in  the  English  cases  to  which  we  have  re- 
ferred, the  question  whether  the  proceeds  of  the  sale  should  be  re- 
garded as  the  value  of  the  property,  appears  to  have  been  submitted 
to  the  determination  of  the  jury,  as  resting  wholly  in  their  discretion. 
But  although  we  cannot  find  that  this  exact  question  has  been  de- 
cided, yet  with  us  we  consider  the  law  as  settled,  and  properly  and 
wisely  settled,  that  the  quantum  of  damages,  with  the  exception  of 
cases  in  Avhich  exemplary  or  vindictive  damages  may  properly  be 
given,  is  strictly  a  question  of  law,  so  that  the  jury,  in  making  the  es- 
timate, are  bound  by  the  rule  which  the  judge  directs  them  to  follow 
(Savage,  Ch.  J.,  in  Baker  v.  Wheeler,  8  Wend.  505).  Damages 
which  may  be  estimated  by  a  certain  rule  founded  upon  principles  of 
justice,  ought  never  to  be  treated  as  discretionary ;  and  no  rule  is 
more  manifestly  just,  than  that  which  compels  a  person  who  has  sold 
the  property  of  another,  to  account  to  the  owner  for  all  the  moneys 
which  he  has  received  ;  which  precludes  him,  in  other  words,  from  de- 
riving a  benefit  from  his  own  wrong. 


SUYDAM   v.   JENKINS.  573 

It  is  evident,  from  this  review  of  the  cases,  that  so  far  as  the  de- 
cisions have  gone,  the  rules  that  control  the  estimate  of  damages  in 
trover,  correspond  entirely  with  those  which  we  have  endeavored  to 
show  ought  upon  principle  to  be  followed. 

It  has,  however,  been  insisted  by  the  counsel  for  the  defendant, 
that  there  is  a  class  of  cases  in  England,  and  in  this  State,  which  fully 
bears  out  the  assertion,  that  the  true  measure  of  damages  in  trover,  is 
not  the  market  value  of  the  property  at  the  time  of  its  conversion, 
but  its  highest  value  at  any  time  between  its  conversion  and  the  trial, 
and  we  entirely  agree  with  the  counsel,  that  if  this  is  a  just  criterion 
of  the  damages  which  the  dispossessed  owner  is  entitled  to  recover, 
we  are  bound  to  apply  it  in  the  action  of  replevin  as  well  as  of  trover. 
There  is  no  distinction  arising  from  a  difference  in  the  form  of  the  ac- 
tion, that  ought  to  affect  the  substance  of  the  relief. 

Our  objections  to  considering  an  intermediate  higher  value  as  an 
invariable  rule  of  damages,  have  already  been  stated,  and  need  not  be 
repeated.  It  is  perfectly  just,  when  the  enhanced  price  has  been  re- 
alized by  the  wrongdoer,  or  it  is  reasonable  to  believe  would  have 
been  realized  by  the  owner,  had  he  retained  the  possession  ;  but,  in  all 
other  cases,  damages  founded  upon  such  an  estimate,  are  either  purely 
speculative,  or  plainly  vindictive.  They  are  conjectural  and  specula- 
tive, when  it  is  barely  possible  that  the  owner,  had  he  retained  the 
possession,  would  have  derived  a  benefit  from  the  higher  value.  They 
are  vindictive,  when  it  is  certain  that  no  such  benefit  could  have  re- 
sulted to  him.  It  is  however  proper,  and  perhaps  necessary,  to  ex- 
amine the  cases  that  have  been  cited  and  relied  on,  since  the  con- 
struction which  has  been  given  them  by  the  defendant's  counsel  is  by 
no  means  novel,  nor  unsupported  by  authority.  It  will  appear,  we 
think,  that  the  true  import  of  the  English  decisions  has  been  greatly 
misunderstood,  and  that  they  by  no  means  justify  the  conclusions 
which  have  been  drawn  from  them. 

The  cases  in  England  are  Fisher  v.  Prince  (3  Burr.  1363) ;  "Whit- 
ten  v.  Fuller  (2  Black.  B.  902) ;  Shepherd  v.  Johnson  (2  East.  211) ; 
McArthur  v.  Seaforth  (2  Taunt.  257) ;  Harrison  v.  Harrison  (1  Carr. 
tfe  P.  112);  Greering  v.  Wilkinson  (1  Carr.  &  P.  625);  and  then  in 
our  own  reports,  West  v.  Wentworth  (3  Cowen,  82),  and  Clark  v. 
Pinney  (7  Ibid.  681). 

Fisher  v.  Prince  and  Whitten  v.  Fuller  were  both  actions  of  trover. 
and  they  have  been  referred  to  by  the  learned  judge  who  delivered 
the  opinion  of  our  Supreme  Court  in  West  v.  Wentworth  and  in 
Clark  v.  Pinney,  as  establishing,  that  in  trover,  where  the  chattel  is 
not  of  a  fixed  or  determinate  value,  the  damages  are  not,  in  all  cases, 


574:      CONVERSION.     RULES   OF   HIGHER   INTERMEDIATE   VALUE. 

confined  to  the  worth  of  the  article  at  the  time  of  its  conversion,  but 
may  be  enhanced  according  to  its  increased  value  subsequent  to  that 
time  (7  Cow.  694  ;  3  Ibid.  83,  per  Sutherland,  J.).  We  admit  the 
fair  interpretation  of  this  language  is,  that  the  increased  value  of  the 
chattel,  in  all  cases  when  a  subsequent  increase  is  proved,  is  the 
proper  measure  of  damages,  and,  consequently,  that  it  goes  the  whole 
length  of  the  doctrine  which  we  have  been  urged  to  adopt ;  but,  after 
a  diligent  examination  of  the  cases  of  Fisher  v.  Prince  and  Whitten 
v.  Fuller,  we  are  constrained  to  say,  that  so  far  from  having  estab- 
lished the  doctrine,  they  do  not  even  allude  to,  or,  by  any  possible 
implication,  direct  or  remote,  suppose  its  existence.  In  eacli  of  those 
cases,  an  application  was  made  to  the  court,  upon  the  part  of  the  de- 
fendant, to  stay  the  proceedings  upon  the  payment  of  the  costs  and 
the  delivery  to  the  plaintiff  of  the  articles  mentioned  in  the  declara- 
tion, and  in  each  the  application  was  denied,  not  however  upon  the 
ground  that  the  articles  were  then  of  greater  value  than  at  the  time 
of  their  conversion,  for  their  enhanced  value,  it  is  plain,  would  have 
been  a  reason,  not  for  denying,  but  granting  the  application,  nor  upon 
the  ground  that,  at  some  intermediate  time,  they  have  borne  a  higher 
value  which  the  plaintiff  was  entitled  to  recover,  for  no  such  fact  ap- 
peared, or  was  alleged  to  exist ;  but,  in  each  case,  the  denial  was 
upon  the  ground  of  the  uncertainty  whether  the  restoration  of  the  ar- 
ticles in  the  state  in  which  they  were  would  compensate  the  plaintiff 
for  his  actual  loss  ;  in  other  words,  and  more  properly,  whether  the 
value  of  the  articles  at  that  time  was  equivalent  to  the  damages,  which 
the  plaintiff  might  justly  claim  to  recover.  In  Whitten  v.  Fuller  the 
action  was  for  a  bond  of  400Z.,  and  the  application  of  the  defendant 
was  resisted  upon  the  ground  that  the  plaintiff  had  sustained  great 
loss  by  the  detention  of  the  bond,  and  their  counsel  stated  the  rule  to 
be,  that  when  the  value  is  uncertain  (?'.  e.  uncertain  when  the  applica- 
tion is  made),  or  a  tort  is  alleged,  for  which  a  jury  may  assess  dam- 
ages, the  court  will  not  permit  such  a  delivery  as  may  evade  the 
plaintiff's  remedy  ;  and  to  this  the  court,  in  denying  the  application, 
plainly  assented  by  saying,  that  they  could  not  stay  the  proceedings, 
if  the  plaintiff  insisted  upon  going  for  special  damages. 

In  Fisher  v.  Prince,  the  reporter  states  that  the  application  was 
denied  upon  the  particular  circumstances  of  the  case,  such  as  the 
complicated  quantity  of  the  goods  demanded,  and  the  uncertainty  of 
their  remaining  of  the  same  value  as  they  were  when  taken,  and 
Lord  Mansfield  closed  his  opinion  by  stating,  as  a  conclusive  reason 
for  rejecting  the  application,  that  the  goods  were  altered  and  their 
value  changed,  evidently  meaning  changed,  not  by  its  increase  but 


SUYDAM   v.   JENKINS.  575 

its  diminution.  It  is  the  opinion,  however,  of  Lord  Mansfield  in 
this  case,  which  has  doubtless  led  to  the  supposition  that  an  inter- 
mediate value  may  be  assumed  as  the  measure  of  damages,  and 
hence  some  further  observations,  explanatory  of  its  import,  seem  to 
be  necessary.  As  we  understand  the  opinion,  his  lordship  does  not 
say  nor  intimate  "  that  the  damages  in  trover  for  a  chattel  may  be 
enhanced  according  to  its  increased  value  at  any  time  subsequent  to 
its  conversion,  and  that  it  is  only  when  the  value  is  fixed  and  deter- 
mined, that  the  damages  will  be  confined  to  its  worth  at  the  time  of 
its  conversion ; "  but  he  does  say,  that  it  is  only  when  a  specific 
chattel  is  demanded  and  there  are  no  circumstances  to  enhance  the 
damages  above  its  real  value,  but  its  real  and  ascertained  value  must 
be  the  sole  measure  of  damages,  that  the  court  will  stay  the  proceed- 
ings upon  its  being  brought  into  court  to  be  delivered  to  the  plaint- 
iff. And  he  adds,  that  when  there  is  an  uncertainty  as  to  the 
quantity  or  quality  of  the  thing  demanded,  or  there  is  any  tort 
accompanying  it  that  may  enhance  the  damages  above  the  real 
value,  and  there  is  no  rule  whereby  to  estimate  the  additional  value, 
then  it  shall  not  be  brought  into  court.  The  ambiguous  words, 
"  additional  value,"  are  the  probable  source  of  the  error  into  which 
judges  and  text-writers  have  fallen  in  construing  this  decision  ;  but 
assuredly  Lord  Mansfii;ld  never  meant  to  say  that  any  addition 
could  be  made  to  the  real  value  of  the  chattel  demanded,  the  price 
for  which  it  might  be  sold,  by  the  damages  to  be  given  for  an 
accompanying  tort.  His  meaning  plainly  is,  that  in  such  a  case  it  is 
impossible  for  the  court  to  say  what  damages  ought  to  be  allowed  in 
addition  to  the  value  which  the  plaintiff  is  in  all  cases  entitled  to 
recover.  The  expression,  "  additional  value,"  may  be  inaccurate, 
but  taken  in  connection  with  those  which  precede  it,  is  not  at  all 
equivocal ;  it  means  "  additional  damages." 

There  is  a  modern  case  upon  the  subject,  not  cited  upon  the 
argument,  which  throws  much  light  upon  the  decisions  in  Fisher  y. 
Prince,  and  Whitten  v.  Fuller,  and  corresponds  with  the  interpreta- 
tion which  we  have  given  them,  viz.,  Tucker  v.  Wright,  (5  Bingham, 
601.)  The  application  was  to  stay  the  proceedings  in  an  action  of 
trover,  upon  the  delivery  to  the  plaintiff  of  certain  parcels  of  cloth 
(a  portion  of  a  larger  quantity  for  which  the  suit  was  brought),  and 
upon  payment  of  the  value  of  certain  other  parcels  which  the  de- 
fendant had  disposed  of,  and  it  was  denied,  upon  the  ground  that 
the  court  or  its  officers  could  not  act  as  a  jury  in  assessing  the  value, 
and  that  the  property  had  been  a  long  time  in  the  defendant's  hands 
and  might  have   been   materially   injured.     In   conclusion,  the  posi- 


576      CONVERSION.     RULES   OF   HIGHER   INTERMEDIATE   VALUE. 

tions  which  Fisher  v.  Prince,  Whitten  v.  Fuller,  and  other  similar 
cases  establish,  are  these,  and  these  only  :  That  the  plaintiff  in  trover, 
in  all  cases  where  the  action  is  maintainable,  is  entitled  to  recover  the 
value  of  the  property  at  the  time  of  the  conversion,  and  may  be 
entitled  to  special  damages  in  addition  ;  and  consequently  that  it  is 
only  when  the  property  certainly  retains  its  original  value,  and  no 
special  damages  are  claimed,  that  the  court  will  order  the  proceed- 
ings to  be  stayed  upon  the  delivery  of  the  property  to  the  plaintiff 
and  the  payment  of  costs,  for  the  plain  reason,  that  it  is  only  in  such 
cases  that  the  restoration  of  the  property  and  the  payment  of  costs 
amount  to  a  full  indemnity.  This  class  of  cases,  therefore,  gives 
no  countenance  or  color  to  the  assertion  that  a  higher  intermediate 
value  can  be  treated  as  the  measure  of  damages,  when  there  is  no 
evidence  that  it  had  been  realized  by  the  defendant,  or  would  have 
been  realized  by  the  plaintiff.  They  prove,  indeed,  that  additional 
damages  may  be  recovered,  but  contain  no  allusion  to  the  possible 
recovery  of  an  additional  value. 

There  is  another  class  of  cases,  however,  the  next  to  which  we 
shall  refer,  which  with  some  appearance  of  reason  has  been  relied  on 
in  support  of  the  doctrine.  Shepherd  v.  Johnson,  McArthur  v. 
Seaforth,  and  Harrison  v.  Harrison,  belong  to  this  class.  The  action 
in  each  of  these  cases  was  debt,  not  trover,  and  in  each  the  question 
decided  arose  upon  the  assessment  of  damages  for  the  breach  of  the 
condition  of  a  bond.  We  lay  no  stress,  however,  upon  this  distinc- 
tion, bat  admit  that  if  the  rule  which  was  followed  in  estimating 
the  damages  was  correct  and  just  in  itself,  no  difference  in  the  form 
of  the  action  should  be  allowed  to  prevent  its  application.  The  rule 
was  adopted  as  a  rule  of  indemnity,  and  when  the  right  to  an 
indemnity  exists,  its  measure  cannot  reasonably  be  made  to  depend 
upon  the  form  of  the  remedy. 

The  bond  in  these  cases  was  conditioned  to  replace  upon  or 
before  a  given  day,  a  certain  amount  of  government  stock,  lent  by 
the  plaintiff  to  the  defendant.  The  stock  was  not  replaced,  and  it 
was  held,  that  in  estimating  the  damages,  the  plaintiff  was  not 
limited  to  the  market  value  of  the  stock  at  the  day  upon  which  it 
ought  to  have  been  replaced,  but  might  justly  claim  the  higher  price 
which  it  bore  at  the  day  of  trial ;  but  in  neither  of  these  cases 
was  it  suggested  or  intimated  by  the  court,  that  the  plaintiff  could 
recover  the  highest  price  which  the  stock  had  borne,  at  any  day 
during  the  interval  between  the  breach  of  the  contract  and  the 
trial ;  and  in  truth  this  position  would  have  been  inconsistent  with 
the  grounds  upon  which  the  actual  decision  was  placed.     Such  a 


SUYDAM   v.   JENKINS.  577 

'claim  was  indeed  advanced  by  the  counsel  for  the  plaintiff,  in 
McArthur  v.  Seaforth,  in  his  opening  argument,  but  it  was  explicitly 
abandoned  in  his  reply,  and  was  passed  over  without  notice  by  the 
court,  in  giving  its  judgment. 

We  do  not  at  all  doubt,  that  where  the  contract  is  for  replacing 
stock  previously  lent,  the  plaintiff,  when  its  breach  is  admitted  or 
proved,  may  elect  to  claim  the  market  price  of  the  stock  at  the  day 
of  trial,  as  the  just  measure  of  his  damages,  and  when  the  true 
grounds  of  the  decision  we  are  now  considering  shall  be  stated,  it 
will  be  seen  that  they  are  entirely  consistent  with  the  views  which 
we  have  already  expressed.  These  grounds  were,  first,  that  as  chan- 
cery may  decree  the  specific  execution  of  a  contract  for  replacing 
stock,  and  the  defendant,  when  such  a  decree  is  made,  to  enable 
himself  to  perform  it,  must  of  necessity  purchase  the  stock  at  its 
then  market  price,  he  can  have  no  right  to  complain  when  he  is  com- 
pelled to  pay  the  same  sum  as  damages  by  the  judgment  of  a  court 
of  law ;  and  second,  that  as  stock  is  usually  held  not  for  sale,  but  as 
a  permanent  investment,  it  is  a  reasonable  presumption,  that  had  it 
not  been  replaced  at  the  stipulated  time,  the  plaintiff  would  have 
retained  its  possession  until  the  day  of  trial ;  and  hence  its  price  at 
that  time,  whatever  it  might  be,  is  no  more  than  an  indemnity. 
When  it  is  withheld,  he  is  not  placed  in  the  situation  in  which  he 
would  have  been  had  the  contract  not  been  broken.  The  first  of 
these  reasons  is  given  by  that  eminent  judge,  Lawrence,  J.,  in 
Shepherd  v.  Johnson  ;  and  in  Harrison  v,  Harrison,  Best,  Ch.  J., 
says,  "  Justice  is  not  done,  if  you  do  not  place  the  plaintiff  in  the 
same  situation  in  which  he  would  have  been  had  the  stock  been 
replaced  at  the  stipulated  time,"  meaning  that  he  would  then  have 
continued  to  be  the  owner  of  the  stock ;  and  that  such  was  his 
meaning  is  rendered  certain  by  his  adding,  "  we  cannot  act  upon  the 
possibility  of  his  not  keeping  it,"  which  is  in  effect  saying,  that  the 
presumption  of  his  continued  possession  could  be  repelled  only  by 
evidence,  and  not  by  conjecture,  and  necessarily  implies,  that  when 
the  presumption  is  properly  repelled,  the  same  damages  could  not 
justly  be  given.  It  is  obvious  to  remark,  that  the  reasons  which 
have  now  been  stated  are  not  at  all  applicable,  where  the  contract  is 
not  for  the  delivery  of  stock,  but  of  merchantable  goods,  which  the 
vendor  has  purchased,  not  for  his  own  use  or  consumption,  but  with 
a  view  to  profit  upon  a  resale.  A  decree  for  the  specific  execution 
of  such  a  contract,  commanding  the  defendant  to  deliver  to  the 
plaintiff  a  certain  number  of  barrels  of  salt  or  flour,  would  be  a 
novelty  in  jurisprudence  ;  and  it  is  so  far  from  being  probable  that 
37 


578      CONVERSION.     RULES   OF  HIGHER   INTERMEDIATE   VALUE. 

the  plaintiff,  had  the  goods  been  delivered  at  the  stipulated  time,, 
would  have  kept  the  possession  until  the  day  of  trial,  that  the  pre- 
sumption is  directly  the  reverse ;  especially  when  we  remember  that 
frequently,  we  fear  we  may  add  usually,  years  intervene  between 
the  breach  of  the  contract  and  the  rendition  of  a  judgment.  We 
cannot  dismiss  this  class  of  cases,  without  calling  attention  to  an 
observation  having  an  important  bearing  upon  the  whole  inquiry, 
which  the  decision  in  McArthur  v.  Seaforth  forcibly  suggests.  In 
this  case,  had  the  stock  been  replaced  at  the  stipulated  time,  the 
plaintiff  might  have  availed  himself  of  an  option  given  by  the  gov- 
ernment, of  exchanging  it  for  stock  of  a  different  description,  which, 
on  the  day  of  trial,  was  of  higher  value  than  the  other  stock  agreed 
to  be  replaced,  and  he  claimed  the  difference  as  a  special  damage,  a 
necessary  compensation  for  the  loss  of  the  advantage  he  might  have 
gained.  But  the  court  rejected  the  claim,  principally  upon  the 
ground  that  it  was  not  at  all  probable  from  the  evidence,  that  the 
plaintiff  would,  in  fact,  have  made  the  exchange  which  the  govern- 
ment allowed.  This  is  an  express  decision  that  hypothetical  dam- 
ages, damages  which  are  meant  to  compensate  not  an  actual  or 
probable,  but  a  merely  possible  loss,  are  not  recoverable. 

The  last  of  the  English  cases,  and  the  only  one  that  bears  the 
resemblance  of  a  direct  authority,  is  Greening  v.  AVilkinson.  It  is, 
however,  only  a  nisi  prius  decision,  and  the  report  is  not  only 
brief,  but  we  apprehend  imperfect ;  material  facts  seem  to  be 
omitted,  nor  is  it  stated  what  was  the  verdict  finally  rendered.  The 
action  was  trover  for  East  India  Company's  warrants  for  cotton, 
and  evidence  was  given  that  cotton  was  worth  six  pence  per 
pound  when  its  delivery  was  demanded,  and  was  worth  10£  pence 
at  the  day  of  trial.  The  counsel  for  the  plaintiff  contended,  relying 
upon  the  stock  cases,  that  the  price  at  the  time  of  the  verdict  was 
the  true  measure  of  damages,  while  the  counsel  for  the  defendant 
urged  the  authority  of  Lord  Ellenborough's  decision  in  Mercer  v. 
Jones  (1  Camp.  479),  as  proving  that  damages  could  not  exceed  the 
value  of  the  property  at  the  time  of  its  conversion.  Abbott,  Ch. 
J.  (Lord  Tentekden),  is  reported  to  have  said  that  Mercer  v.  Jones 
was  hardly  law,  and  that  in  his  opinion,  "  the  price  of  the  article  on 
the  day  of  conversion,  is  by  no  means  the  criterion  of  the  damages  ; " 
which  it  certainly  is  not,  where  special  damages  in  addition  are 
proved ;  but  the  learned  judge  further  said,  "  that  the  amount  of 
damages  is  for  the  jury  who  may  give  the  value  at  the  time  of  the 
conversion,  or  at  any  subsequent  time,  in  their  discretion,  because 
the  plaintiff  might  have  had  a  good  opportunity  of  selling  the  goods, 
if  they  had  not  been  detained." 


SUYDAM   v.   JENKINS.  579 

Now  as  it  is  not  stated  that  there  was  any  evidence  that  the 
cotton  had  borne  a  higher  price  at  any  intermediate  time  than  on 
the  day  of  trial,  and  the  claim  of  the  counsel  of  the  plaintiff  was 
limited  to  the  price  on  that  day,  these  remarks  seem  to  have  been 
wholly  irrelevant ;  but  admitting  them  to  have  been  rendered  per- 
tinent by  evidence  not  stated  by  the  reporter,  they  are  susceptible 
of  an  interpretation  entirely  consistent  with  our  own  views,  since 
the  learned  judge  may  only  have  meant  to  say,  that  if  the  jury  were 
satisfied  from  the  evidence  that  the  plaintiff  would  have  availed 
himself  of  the  opportunity  of  selling  the  goods  had  they  not  been 
detained,  they  might  allow  as  damages  the  highest  price  he  would 
then  have  obtained.  Yet  even  with  this  explanation,  we  cannot 
assent  to  the  propriety  of  a  direction,  which  seems  to  have  left  the 
amount  of  damages  claimed  as  an  indemnity,  to  the  absolute  discre- 
tion of  the  jury.  Where  damages  are  justly  claimed  as  an  indem- 
nity, and  the  facts  upon  which  the  claim  is  rested  are  proved,  the 
verdict  of  a  jury  refusing  to  allow  them,  with  us  would  be  set  aside 
as  contrary  to  law. 

It  appears  then,  from  this  review  of  the  English  cases,  that 
there  is  no  evidence  that  in  a  single  case  an  intermediate  higher 
value  not  maintained  to  the  day  of  trial  has  been  adopted  as  the 
measure  of  damages,  and  that  in  McArthur  v.  Seaforth,  the  single 
case  in  which  such  a  claim  appears  to  have  been  made,  it  was  so 
plainly  discountenanced  by  the  judges,  that  it  was  finally  abandoned 
by  the  counsel. 

It  is  said,  however,  that  whatever  may  be  the  case  in  England, 
or  in  other  States  of  the  Union,  the  law  in  this  State  is  settled  that 
in  an  action  upon  a  contract  for  the  sale  and  delivery  of  goods,  upon 
a  stipulated  day,  if  the  consideration  money  has  been  paid  in 
advance,  and  the  plaintiff  proves  his  case,  he  is  not  limited  in  the 
measure  of  damages  to  the  value  of  the  goods  on  the  day  when  they 
should  have  been  delivered,  but  is  entitled  to  recover  the  highest 
price  for  which  they  could  have  been  sold  at  any  time  between  the 
breach  of  the  contract  and  the  day  of  trial ;  and  it  has  been  strongly 
insisted,  that  the  principle  upon  which  the  decision  has  been  made 
is  applicable  to  all  cases  where  the  property,  which  is  the  subject  of 
controversy,  has  been  wrongfully  taken  or  detained,  nor  shall  we 
deny  that  this  analogy  exists.  "We  shall  not  deny  that  an  owner 
who  has  been  unjustly  deprived  of  the  possession  of  his  goods  is 
entitled  to  as  full  an  indemnity  as  a  purchaser. 

The  decisions  of  the  Supreme  court  in  West  v.  Wentworth,  and 
in  Clark  v.  Pinney,  have   been  confidently  appealed  to,  as  having 


580      CONVERSION.     RULES   OF   HIGHER   INTERMEDIATE   VALUE. 

sanctioned  the  doctrine  in  question,  and  it  must  be  admitted,  that 
such  appears  to  be  their  necessary  construction.  It  is  the  construc- 
tion which  has  been  given  to  them  by  text  writers  (Sedgwick  upon 
Damages,  265  ;  Story  on  Contracts,  2d  ed.  p.  722,  §  846),  and  it 
corresponds,  we  believe,  with  the  general  understanding  of  the 
profession.  But  we  cannot  admit  that  these  decisions  are  alone 
sufficient  to  establish  the  doctrine,  if  not  otherwise  sustained,  by 
argument  and  by  the  authorities,  nor  can  we  think,  that  we  are 
bound  to  follow  it  implicitly  without  any  inquiry  into  its  grounds 
and  reasons.  If  there  are  any  rules  in  the  law  of  damages  that  may 
be  regarded  as  fixed  and  invariable,  they  are,  that  neither  exemplary 
damages,  nor  such  as  are  remote  and  consequential,  or  purely  specu- 
lative, are  recoverable  in  an  action  founded  upon  the  breach  of  an 
executory  contract,  but  that  the  remedy  of  the  plaintiff,  in  all  such 
cases,  is  limited  to  a  just  compensation  for  his  actual  loss.  He  is 
entitled  to  an  indemnity  and  nothing  more  ;  and,  consequently,  is 
never  to  be  placed  in  a  better  situation  than  that  in  which  he  would 
have  been,  had  the  contract  been  fulfilled  (Sedgwick  on  Damages, 
27,  28,  206).  And  yet,  in  many  cases,  this  must  be  the  necessary 
consequence,  if  under  a  contract  for  the  delivery  of  goods,  upon  a 
future  day,  their  highest  intermediate  value  is  to  be  invariably 
adopted  as  the  measure  of  damages,  and  such,  we  add,  seems  really 
to  have  been  the  effect  of  the  application  of  this  rule  both  in  West 
v.  Wentworth,  and  in  Clark  v.  Pinney. 

In  West  v.  Wentworth,  there  were  two  contracts,  founded  upon 
a  consideration  admitted  to  have  been  received,  for  the  delivery  of 
salt ;  the  first  parcel  was  to  be  delivered  in  June,  1820,  and  the 
second  in  October,  in  the  same  year,  and  the  cause  was  tried  in  July, 
1823.  In  Clark  v.  Pinney  the  contract  also  related  to  salt,  which 
was  agreed  to  be  delivered  on  the  15th  April,  1821,  and  the  cause 
was  tried  in  May,  1825.  In  each  case  it  was  proved,  that  the  max- 
imum price  of  salt,  in  the  interval  between  the  time  fixed  for  its 
delivery  and  the  day  of  trial,  was  in  the  autumn  of  1822,  and  in 
each  the  judge  who  tried  the  cause,  instructed  the  jury,  that  the 
maximum  price  was  the  measure  of  damages  which  the  plaintiff  was 
entitled  to  receive ;  and  the  Supreme  court,  upon  an  application  for 
a  new  trial,  held,  that  the  rule  of  damages  thus  adopted  was  correct 
upon  principle  and  upon  the  authorities.  It  is  evident,  that,  in 
these  cases,  the  salt  was  not  purchased  for  the  personal  use  or 
accommodation  of  the  vendees,  but  for  the  purpose  of  sale  by  them  ; 
and  in  Clark  v.  Pinney,  this  fact  is  not  only  distinctly  admitted,  but 
is  stated  as  a  necessary  ground  of  the  decision  (7  Cow.  696).     It  is 


SUYDAM   v.   JENKINS.  581 

probable,  from  the  usual  course  of  the  trade,  that  in  both  cases  the 
salt  was  meant  to  be  exported  upon  the  lakes  to  a  western  market 
(id.  p.  682)  ;  hence  had  it  been  duly  delivered  under  the  contracts, 
the  vendees  could  not  have  obtained  the  maximum  price  which  was 
adopted  as  the  measure  of  damages,  unless  they  had  retained  the 
possession,  in  West  v.  Wentworth,  for  more  than  two  years,  and  in 
Clark  v.  Pinney  for  more  than  eighteen  months,  after  the  delivery. 
That  they  would  have  done  so,  considering  the  motives  of  the 
purchaser,  the  nature  of  the  trade,  and  of  the  article  itself,  was  in 
the  highest  degree  improbable,  nor  does  it  appear  that,  in  either 
case,  there  was  a  particle  of  evidence  to  warrant  the  conclusion. 
Even  upon  the  supposition,  that  some  evidence  bearing  upon  this 
question,  was  given  upon  the  trial,  still,  according  to  our  views  of  the 
law,  its  determination  should  have  been  left  to  the  jury  under  the 
instruction  that  the  maximum  price  was  not  to  be  allowed  as  the 
measure  of  damages,  unless  they  were  satisfied,  that,  had  the  contract 
been  performed,  it  would  have  been  realized,  and,  consequently,  was 
necessary  to  be  given  as  a  compensation  to  the  plaintiffs  for  their 
actual  loss.  The  direction,  however,  given  to  the  jury  in  each  case 
was  positive,  and  was,  therefore,  certainly  erroneous,  unless  it  is  an 
inflexible  rule  of  law,  that,  upon  such  contracts,  the  highest  inter- 
mediate value  is  the  true  measure  of  damages,  whatever  may  be  the 
circumstances  of  the  particular  case ;  in  other  words,  that  the 
damages  must  be  given,  even  when  it  is  certain  that  no  equivalent 
loss  has  been  sustained.  The  learned  judge,  who,  in  an  elaborate 
opinion,  delivered  the  judgment  of  the  court  in  Clark  v.  Pinnev, 
distinctly  admitted,  that  in  the  ordinary  case  of  a  contract  for  the 
sale  and  delivery  of  goods  on  a  future  day  when  the  price  is  not  to 
be  paid  until  delivery,  the  true  and  only  criterion  of  the  damages  is 
the  price  of  the  goods  upon  the  day  fixed  for  their  delivery,  but  lie 
insisted  that  the  vendee  is  not  confined  in  measuring  his  damages  to 
the  value  of  the  goods  on  the  day  when  they  should  have  been 
delivered,  where  the  price  of  the  goods  has  been  paid  at  the  time  of 
making  the  contract,  or  at  any  time  anterior  to  that  fixed  for  their 
delivery  (7  Cow.  687).  That  the  vendee  is  not  thus  confined  we 
fully  concede ;  but  we  apprehend,  that  it  is  a  most  illogical  conclu- 
sion that  the  highest  price  of  the  goods,  at  any  subsequent  time 
before  the  trial,  is  therefore  necessary  to  be  adopted  as  the  universal 
measure  of  damages.  It  is  this  conclusion,  however,  that  the  Su- 
preme court  seems  to  have  adopted  as  self-evident,  since  no  effort  is 
made  to  demonstrate  its  necessity  or  propriety. 

The  reason  of  the  distinction  between  the  cases  in  which  the 


582      CONVERSION.  *  RULES   OF   HIGHER   INTERMEDIATE   VALUE. 

goods  purchased  are  to  be  paid  for  only  upon  delivery,  and  those  on 
which  the  contract  price  is  advanced,  is  stated  to  be,  that,  in  the  first 
case,  the  vendee  having  retained  the  possession  of  his  funds  might 
have  applied  them,  when  the  contract  was  broken,  to  the  purchase 
of  other  goods  of  the  like  description  and  quality,  and  thus  have 
secured  to  himself  the  advantage  of  their  subsequent  rise  in  value, 
and  consequently  when  he  has  neglected  to  do  so  the  loss  that  he 
sustains  must  be  ascribed  to  his  own  fault ;  whereas  the  vendee  who 
has  parted  with  his  funds  by  advancing  the  price  has  disabled  him- 
self from  pursuing  a  similar  course,  so  that  his  loss  of  a  gain,  that 
might  otherwise  have  been  realized,  may  be  justly  considered  as  a 
direct  consequence  of  the  non-delivery  of  the  goods.  It  is  manifest, 
however,  that  this  reasoning  implies  that  had  the  goods  been  deliv- 
ered the  gain  would  have  been  made,  and  is,  therefore,  only 
applicable  when  this  fact  is  established  by  proof,  or  may  be 
justly  presumed  ;  and  we  deny  that  this  presumption  can  reasonably 
be  made  when  the  goods  are  purchased  for  sale,  and  are  liable  to 
injury  from  the  lapse  of  time,  unless  the  increased  value  set  up  as 
the  measure  of  damages  has  occurred  within  a  short  period  after  the 
time  when  the  goods  should  have  been  delivered.  It  may  be 
perfectly  just,  that  the  vendee,  who  is  not  to  pay  for  the  goods  until 
the  delivery,  should  be  limited  in  the  recovery  of  damages  to  the 
difference  between  the  contract  price  and  the  market  value  of  the 
goods  on  the  day  fixed  for  their  delivery,  but  it  by  no  means 
follows,  nor,  without  a  violation  of  principle  and  a  defiance  of 
analogy,  can  we  say,  that  the  vendee,  who  has  advanced  the  price,  is 
entitled  to  speculative  damages  to  cover  a  barely  possible  loss,  and 
still  less,  that  he  is  entitled  to  damages  exceeding  any  loss,  that  had 
the  contract  been  complied  with,  he  could  have  sustained.  Whether 
the  contract  price  has  or  has  not  been  paid,  the  truth  remains  that 
the  vendee,  when  the  contract  is  broken,  may  claim  an  indemnity, 
and  has  no  right  to  claim  anything  beyond  it.  The  amount  of  the 
loss,  and,  therefore,  of  the  damages  by  which  it  is  to  be  compen- 
sated, may  vary,  but  there  can  be  no  difference  in  the  principle  by 
which  the  estimate  of  damages  ought  to  be  governed,  and  this  prin- 
ciple, we  are  constrained  to  say,  in  the  cases  of  West  v.  Went  worth, 
and  Clark  v.  Pinney,  seems  to  have  been  overlooked  and  disregarded. 
It  was  disregarded  in  assuming  the  maximum  price  of  the  salt  as  the 
measure  of  damages,  without  any  evidence  to  show,  or  any  ground 
for  presuming,  that  this  price,  had  the  salt  been  delivered  under  and 
according  to  the  terms  of  the  contract,  would  have  been  obtained 
by  the  plaintiffs.     It  was  disregarded  in  sanctioning  verdicts  for 


SUYDAM   v.   JENKINS.  583 

damages  exceeding  any  loss  which  the  court  or  jury  had  any  right 
to  say  the  plaintiffs  had  sustained.  The  learned  judge  who  deliv- 
ered the  opinion  in  Clark  v.  Pinney,  was  entirely  successful  in 
proving  that  damages  exceeding  the  value  of  goods  at  the  time  they 
ought  to  have  been  delivered  under  a  contract,  in  an  action  founded 
upon  its  breach  may  be  given,  but  he  did  not  even  attempt  to  prove 
that  such  additional  damages  may  be  given  when  there  is  no  proof 
and  no  reasonable  presumption  of  an  additional  loss,  nor,  so  far  as 
our  researches  have  extended,  are  any  other  cases  to  be  found  that 
lend  the  slightest  countenance  to  this  novel  doctrine.  In  addition 
to  the  cases  that  we  have  already  examined  (the  trover  cases  in 
Burrow  and  in  Blackstone,  and  the  stock  cases),  the  learned  judge 
referred  to  some  expressions  of  Chief  Justice  Marshall  of  very 
doubtful  import  in  Shephard  v.  Hampton  (3  Wheaton,  200),  and  to 
the  language  of  the  court  in  Gainsford  v.  Carroll  (2  B.  &  Cress. 
624),  which  was  said  by  a  necessary  implication  to  sanction  the  rule 
that  the  Supreme  court  have  followed.  It  does  not  appear,  how- 
ever, that  this  language  has  been  so  understood  in  England,  and  it  is 
certain  if  such  is  its  true  interpretation,  it  has  been  rejected  and 
overruled  not  by  inconsistent  dicta,  but  by  an  express  decision. 

The  most  recent  case  in  the  English  reports  is  Startup  v.  Cortuz- 
zee  (2  Cr.  Mees.  &  Rose.  165),  and  it  stands  in  direct  opposition  to 
"West  v.  "Wentworth,  and  Clark  v.  Pinney,  and  consequently  to 
Gainsford  v.  Carroll,  if  the  dicta  of  the  court  in  that  case  deserve 
the  name  of  authority. 

The  action  was  assumpsit,  to  recover  damages  for  the  non-deliv- 
ery of  a  cargo  of  linseed  pursuant  to  a  contract  of  sale.  The  con- 
tract price  was  thirty  shillings  per  quarter ;  the  price  when  the 
vessel  arrived,  and  the  linseed  ought  to  have  been  delivered,  fifty 
shillings  per  quarter ;  at  the  time  of  the  trial,  it  had  advanced  to 
fifty-six  shillings.  The  plaintiff  had  paid  in  advance  a  moiety  of 
the  purchase  money,  and  the  defendant  had  paid  this  sum  with 
interest  into  court,  and  an  additional  sum  of  52-i/.,  and  his  counsel 
insisted  on  the  trial  that  the  whole  amount  paid  into  court  was  suffi- 
cient to  cover  all  the  damages  which  the  plaintiffs  were  entitled  to 
recover ;  but  the  opposite  counsel  contended  that  as  the  plaintiff  had 
paid  a  portion  of  the  purchase  money,  they  were  entitled  to  dam- 
ages according  to  the  price  at  which  the  seed  was  selling  at  the  time 
of  the  trial.  Lord  Ablxger,  who  tried  the  cause,  told  the  jury  that 
in  his  opinion,  the  plaintiffs  were  not  entitled  to  treat  the  cause  as 
resembling  contracts  for  replacing  stock,  and  were,  therefore,  not 
entitled  to  damages  according  to  the  price  of  the  seed  at  the  time  of 


584      CONVERSION.     RULES   OF   HIGHER   INTERMEDIATE   VALUE. 

the  trial,  and  that  taking  the  price  at  the  time  the  cargo  would  have- 
arrived   had   it   been    shipped   for   delivery  under  the  contract,  it 
appeared  to  him  that  enough  had  been  paid  into  court.     The  jury 
under  this  charge,  being  of  the  same  opinion  as  to  the  sufficiency  of 
the  sum  paid  into  court,  found  a  verdict  for  the  defendant.     The 
counsel  for  the  plaintiff  moved  for  a  new  trial,  on  the  ground  of  the 
misdirection  of  the  judge,  and  in  support  of  the  motion  relied  prin- 
cipally upon  the  language  of  the  court  in  Gainsford  v.  Carroll,  but 
the  judges  were  all  of  opinion  that  the  case  had  been  left  to  the 
jury  under  the  proper  direction,  the  plaintiffs  not  being  entitled  to 
speculative  damages  to  cover  the  profits  which  they  might  possibly 
have  made  had  the  linseed  been  delivered,  and  there  being  no  cir- 
cumstances to  show  that  they  had,  in  fact,  sustained  any  special 
damage.     The  application  for  a  new  trial  was  therefore  denied.     No 
comments  upon  this  decision  can  be  requisite.     Its  import  is  plain 
and  unmistakable.     It  is  a  positive  decision,  that  the  general  rule  of 
damages  applicable  to  contracts  for  the  sale  of  goods,  is  not  altered 
by  the  mere  circumstances  of  a  payment  in  advance,  and  that  specu- 
lative damages  to  cover  the  loss  of  a  possible  gain  ought  never  to  be 
allowed.     It  is  therefore  a  conclusive  proof  that  the  doctrine  which 
the  Supreme  court  is  said  to  have  established,  and  we  are  required 
to  follow,  is  not  considered  as  law  in  England,  though  it  is  upon 
English  authorities  that  it  was  originally  founded.     Nor,  so  far  as 
we  have  been  able  to  discover,  is  the  doctrine  considered  as  law  in 
any  one  of  our  sister  States  ;  and  in  many,  as  in  Pennsylvania  (Smith- 
urst  v.  "Woolson,  5  Sergt.  &  Rawle,  106) ;    in  Connecticut  ("Wills  v. 
Abernethy,  5  Conn.  R.  222) ;    in  Massachusetts   (Gray  v.  Portland 
Bank,  3  Mass.  356  ;    Swift  v.  Barnes,  16  Pick.  194)  ;    in  Kentucky 
(Lasler  v.  Allen,  2  Bibb,  338)  ;  and  in  Louisiana  (Vance  v.  Journe, 
13  Lou.  R.  225)  ;   it  has  been  explicitly  rejected.     We  must,  there- 
fore, adhere  to  the  opinion  that  whether  the  action  be  trover  or 
assumpsit,  the  highest  intermediate  value  or  price  ought  never  to  be 
taken  as  the  measure  of  damages,  unless  the  evidence  justifies  the 
belief,  not  that  it  might,  but  that  it  would,  have  been  realized  by 
the  plaintiff,  had  he  retained  the  possession  of  the  property,  or  that 
it  has  been,  or  might  still  be,  realized  by  the  defendant. 

"When  we  examine  with  attention  the  cases  of  West  v.  "Went- 
worth  and  Clark  v.  Pinney,  the  source  of  the  error,  which  we  are 
forced  to  think  that  the  decisions  involve,  is  readily  discovered.  In 
each  case,  the  counsel  for  the  defendant  insisted  that  where  goods 
contracted  to  be  sold  have  not  been  delivered,  their  value  at  the 
time  fixed  for  the  delivery  is  not  merely  the  ordinary,  but  the  only 


SUYDAM   v.   JENKINS.  585 

measure  of  damages.  Hence  the  general  question,  whether  in  any 
case  higher  damages  can  be  given,  is  that  to  which  the  attention  of 
the  court  was  alone  directed.  It  does  not  seem  to  have  occurred  to 
the  counsel,  and  therefore  escaped  the  attention  of  the  court,  that 
although  special  damages  exceeding  the  original  value  may  in  many 
cases  be  justly  given,  yet  they  can  be  given  only  as  an  indemnity, 
and  consequently  that  proof  of  a  loss  commensurate  with  the  in- 
demnity claimed  is  indispensable. 

We  resume  the  inquiry,  that  will  not  much  longer  detain  us  ; 
whether  the  principles  which  we  have  stated  are  those  which  ought, 
in  all  cases,  to  control  the  estimate  of  damages  are  consistent  with 
the  adjudged  cases. 

In  trespass  de  bonis  asportatis,  if  no  exemplary  damages  are 
claimed,  there  seems  to  be  an  entire  concurrence  of  the  authorities, 
that  the  general  rule  of  damages  is  the  same  as  in  trover,  and  it  is 
well  settled,  that  speculative  damages  to  cover  the  loss  of  possible  or 
even  probable  profits,  ought  not  to  be  allowed  (The  Apollo,  9  Wheat. 
376;  Pacific  Ins.  Co.  v.  Conard,  1  Bald.  138;  s.  c.  1  Peters,  275; 
Brannin  v.  Johnson,  19  Maine,  361). 

The  numerous  cases  in  replevin,  which  were  cited  by  the  counsel 
upon  the  hearing,  have  no  striking  application,  and  are  not  very  con- 
sistent. These  which  favor  most  the  argument  for  the  defendant,  are 
Carpenter  v.  Stevens  (12  Wend.  589),  and  Swift  v.  Barnes  (16  Pick- 
194).  In  Carpenter  v.  Stevens,  the  defendants,  in  an  action  upon  a 
replevin  bond,  when  the  non-return  of  the  property  pursuant  to  a 
judgment  de  retorno  haoendo,  was  alleged  as  a  breach  of  the  condi- 
tion, pleaded  that  before  the  judgment  was  rendered,  the  property 
had  perished  by  inevitable  accident  without  any  default  of  the 
defendant,  Stevens  (the  plaintiff  in  the  replevin),  his  servants  or 
agents,  and  upon  demurrer  the  Supreme  court,  holding  the  plea  to  be 
a  good  bar,  gave  judgment  for  the  defendants.  This  decision,  if  ad- 
mitted to  be  law,  apparently  justifies  all  the  conclusions  that  were 
drawn  from  it  by  the  counsel  for  the  defendant.  If  the  plaintiff  in 
replevin  is  discharged  from  all  liability  when  the  property  has  per- 
ished by  inevitable  accident,  he  cannot  be  responsible  for  damages 
resulting  from  a  deterioration  which  it  was  impossible  for  him  to 
guard  against  or  prevent.  Hence,  when  the  judgment  is  for  a 
return,  he  must  take  the  property  in  its  actual  state,  and  is  not  enti- 
tled to  damages  not  imputable  to  the  act  or  default  of  the  plaintiff, 
and  consequently,  if  the  property  is  not  returned,  its  actual  value, 
when  the  judgment  was  rendered,  can  be  the  only  measure  of  dam- 
ages in  a  suit  upon  the  replevin  bond,  since  the  loss  of  this  value  is 


586      CONVERSION.     RULES   OF   HIGHER   INTERMEDIATE   VALUE. 

the  whole  extent  of  the  injury  sustained.  By  analogy,  it  is  for  the 
same  value  that  judgment  must  be  given,  when  a  judgment  for  the 
value,  instead  of  a  return,  is  rendered  by  the  election  of  the  defend- 
ant. To  complete  the  chain  of  inference,  it  remains  only  to  add, 
that  if  the  value  of  the  property,  when  the  judgment  is  rendered,  is 
the  true  measure  of  damages  when  the  value  is  depreciated,  it  must 
be  equally  so,  when  it  is  enhanced.  The  rule,  if  not  uniform,  would 
lead  to  manifest  injustice. 

The  inferences  that  have  been  stated,  seem  to  follow  in  a  logical 
sequence,  and  if  the  decision  in  Carpenter  v.  Stevens  were  admitted 
to  be  law,  we  should  find  it  difficult  to  resist  them.  But  this  admis- 
sion we  cannot  make.  The  decision  is  one  of  those  which  we  regret, 
but  are  constrained  to  say,  we  cannot  follow.  It  appears  to  us  to  be 
wrong  in  principle,  and  it  is  plainly  contradicted  by  many  authorities. 
The  undertaking  of  the  plaintiff  in  the  replevin  bond,  we  conceive, 
is  absolute  to  return  the  goods,  or  pay  their  value  at  the  time  of  the 
execution  of  the  bond.  We  cannot  think  that  a  wrongdoer  is  ever  to 
be  treated  as  a  mere  bailee,  and  that  the  property  in  his  possession  is 
to  any  extent  at  the  risk  of  the  owner.  We  have  seen  that  the  de- 
fendant in  trover  or  trespass  is  in  all  cases  responsible  for  the  value 
of  the  property  when  taken  or  converted,  and  certainly  it  has  never 
been  supposed  that  he  can  discharge  himself  from  this  responsibility, 
in  whole  or  in  part,  by  showing  that  the  property  had  been  destroyed 
or  injured  by  an  inevitable  accident,  after  he  had  obtained  its  posses- 
sion. A  plaintiff  who,  without  right  or  title,  has  siezed  the  property 
of  another  by  a  writ  of  replevin,  is  as  much  a  wrongdoer  as  a  defend- 
ant in  trover.  No  reason  can  be  given  why  his  liability  should  be 
less  extensive,  and  in  fact  when  the  replevin  suit  is  terminated, 
although  he  cannot  be  treated  as  a  trespasser,  he  may  be  sued  in 
trover  at  the  election  of  the  defendant  (Yates  v.  Fassett,  5  Denio, 
21).  The  decision  in  Carpenter  v.  Stevens  is  plainly  inconsistent 
with  the  prior  decision  of  the  same  court  in  Rowley  v.  Gibbs  (14 
John.  385),  in  which  the  defendants  in  a  replevin,  in  addition  to  a 
return  of  the  goods,  were  held  to  be  entitled  to  damages  for  a  deteri- 
oration in  their  value,  from  the  time  of  the  replevy,  although  it  was 
not  pretended  that  the  decrease  in  value  was  attributable  in  any 
degree  to  the  act  or  default  of  the  plaintiff ;  and  it  is  irreconcilable 
with  the  numerous  cases,  in  which  it  has  been  held  expressly,  or  by  a 
necessary  implication,  that  in  a  suit  upon  the  replevin  bond,  the 
value  of  the  property,  as  fixed  by  the  penalty  of  the  bond,  is,  at  the 
election  of  the  plaintiff',  the  true  measure  of  damages  (Middleton  v. 
Bryan,  3  M.  &  Sel.  158  ;    Mattoon  v.  Pierce,  12  Mass.  406  ;    Hugge- 


SUYDAM   v.   JENKINS.  587 

ford  v.  Ford,  11  Pick.  222  ;  Wood  v.  Brainerd,  9  ibid.  322 ;  Barnes 
v.  Bartlett,  15  ibid.  71,  and  opinion  of  court  at  page  77,  &c.  ; 
Brizsee  v.  Maybee,  21  Wend.  144  ;  McCabe  v.  Morehead,  1  Watts  & 
Sergt.  563). 

In  the  second  case,  Swift  v.  Barnes,  it  was  held  by  the  Supreme 
court  of  Massachusetts,  in  a  suit  upon  a  replevin  bond,  that  the 
plaintiff,  who  as  the  defendant  in  the  replevin  had  obtained  a  judg- 
ment de  retorno  habendo,  was  entitled  to  recover  the  value  of  the 
property,  at  the  time  its  return  was  demanded  under  the  writ  of 
restitution.  We  infer  from  the  report,  that  the  property  at  the  time 
was  still  in  the  possession  of  the  defendant,  and  if  so,  the  decision  is 
in  perfect  harmony  with  our  own  views. 

None  of  the  replevin  cases,  as  we  have  before  intimated,  have  a 
direct  application  to  the  present.  In  none  has  the  exact  question 
that  we  are  now  required  to  determine  been  decided  or  considered. 
The  election  which  is  given  to  a  successful  defendant  to  take  judg- 
ment for  a  return  of  the  property,  or  for  its  value,  we  believe,  is 
peculiar  to  our  own  municipal  law.  It  is  a  new  provision  in  the 
revised  statutes  ;  and  so  far  as  we  have  been  informed,  or  have  dis- 
covered, this  is  the  first  case  in  which  the  question  as  to  its  proper 
construction  has  been  raised  for  decision.  This  question  leads  to  the 
next  branch  of  our  inquiry,  namely,  whether  the  rules  which  we  have 
endeavored  to  show  ought  in  all  cases  to  be  followed,  are  consistent 
with  the  provisions  of  the  statute  ;  and  that  they  certainly  are  so,  no 
observations  can  be  requisite  to  prove.  It  is  sufficient  to  read  the 
statute.  It  contains  no  reference  to  the  period  at  which  the  value 
for  which  judgment  may  be  taken  is  to  be  calculated,  and  no  defini- 
tion of  the  principles  that  are  to  govern  the  estimate  of  damages,  but 
leaves  the  question,  which  the  omission  creates,  to  the  determination 
of  the  judges,  according  to  the  rules  of  justice  and  the  analogy  of 
the  law.  In  construing  the  statute,  we  think  that  we  are  bound  to 
give  to  the  term  "  value,"  a  definite  and  uniform  sense,  since  we 
cannot  believe  that  the  application  was  meant  to  depend  upon  the 
mere  will  of  the  defendant,  or  the  arbitrary  discretion  of  a  jury.  It 
means  either  the  value  of  the  property  at  the  time  of  the  replevy,  or 
at  the  time  that  the  defendant  elects  his  judgment ;  and  if  the  latter 
is  its  true  application  in  any  case,  it  must  be  so  in  all.  Upon  this 
supposition,  however,  the  consequences  that  have  before  been  stated 
inevitably  follow,  that  if  the  property  has  perished  or  wholly  lost  its 
value,  without  any  neglect  or  fault  imputable  to  the  plaintiff  or  his 
agent,  no  judgment  at  all  can  be  given,  or  a  judgment  only  for  a 
nominal  amount.  We  cannot  hesitate,  however,  to  reject  an  inter- 
pretation as  contrary  to  the  probable  intention  of    the  legislature 


588      CONVERSION.     RULES   OF   HIGHER   INTERMEDIATE   VALUE. 

which  casts  the  risk  of  the  destruction  or  deterioration  of  the  prop- 
erty upon  the  owner,  instead  of  the  wrongdoer,  especially  as  by 
adopting  the  value  at  the  time  of  the  replevin,  not  only  is  this 
consequence  avoided,  but  entire  justice  may  in  all  cases  be  done  to 
the  parties,  since,  if  the  sum  at  which  the  value  is  assessed  is  less  than 
the  whole  amount  which  the  owner  ought  to  recover,  the  deficiency 
may  be  made  good  in  the  estimate  of  damages. 

The  result  of  our  opinion  is,  that  the  referee  has  erred  in  assess- 
ing the  value  according  to  the  price  of  flour  at  the  time  of  the 
defendant's  election,  and  in  allowing  interest  upon  that  sum  from  the 
time  of  the  replevin.  The  report  must  therefore  be  set  aside,  and 
there  must  be  a  rehearing  or  trial,  unless  the  parties  will  consent  that 
judgment  shall  be  entered  for  the  value,  according  to  the  price  of  the 
flour  when  replevied,  with  interest  from  that  time,  there  being  no 
evidence  to  show  that  any  special  damage,  exceeding  the  interest, 
has  been  sustained. 

We  shall  make  no  excuse  for  the  length  of  this  opinion.  Our 
motives  for  examining  the  subject  so  fully  as  we  have  done,  we  have 
no  doubt,  will  be  understood  and  appreciated.  The  arbitrary  distinc- 
tions which  were  permitted  to  flow  from  a  difference  in  the  forms  of 
action,  are  now  abolished,  and  the  time  has  arrived,  wThen  general  and 
uniform  rules  upon  the  subject  of  damages,  rules  so  just  and  compre- 
hensive, as  to  be  susceptible  of  universal  application,  may  be  adopted. 
To  lay  down  and  establish  these  rules  is  the  province  and  duty  of 
judges,  and  it  is  this  duty  that  we  have  wished  to  discharge.* 


Principal  and  Agent  ;  Conversion. 


COURT   OF   APPEALS. 

[1864.]  Scott  v.  Rogers  (31  K  Y.  C7G). 

Where  the  gist  of  the  action  is  for  such  breach  of  duty,  the  rule  of  damages  applicable  is 
to  allow  the  plaintiff  the  highest  market  price  of  the  property  prevailing  between 
the  time  of  the  conversion,  and  a  reasonable  time  thereafter  within  which  to  com- 
mence the  action. 

Where  the  conversion  took  place  at  Buffalo,  N.  T.,  Jul}7  13,  and  navigation  between 
Buffalo  and  New  York  closed  about  the  29th  of  November  of  the  same  year,  it  was 
held,  that  a  reasonable  time  within  which  to  commence  the  action  extended  to  said 
29th  of  November. 

*  At  a  subsequent  term,  the  counsel  for  the  defendant  elected  to  take  judgment  on 
the  principle  settled  by  the  court,  and  it  was  entered  accordingly. 


SCOTT   v.   ROGERS.  589 

Where  the  intention  of  the  party  to  sell  the  property  at  a  definite  time  can  be  ascer- 
tained, that  intention  should  be  considered  in  determining  the  time  within  which  to 
limit  the  inquiry  as  to  the  market  price  of  the  property  converted,  etc. 

The  plaintiff  may  restrict  the  time  within  which  to  determine  the  measure  of  damages, 
by  signifying  in  any  manner  his  election  to  treat  the  property  converted  as  having 
vested  in  another. 

But,  it  seems,  the  plaintiff  will  not  be  permitted  to  prosecute  his  inquiries  through  the 
entire  period  between  the  conversion  and  the  time  when  the  statute  of  limitations 
would  attach,  for  the  purpose  of  discovering  the  highest  price  at  which  such  property 
sold  in  market. 

This  is  an  appeal  from  a  judgment  rendered  by  the  Superior 
Court  of  Buffalo,  in  favor  of  the  plaintiff  against  the  defendants. 

The  action  was  to  recover  damages  resulting  from  an  omission  by 
the  defendants  to  sell  or  ship  the  plaintiff's  wheat,  in  accordance  with 
his  instructions,  and  was  tried  by  the  court  without  a  jury.  The 
plaintiff  resided  in  Cleveland,  Ohio,  and  the  defendants  were  com- 
mission merchants,  and,  as  such,  engaged  in  business  at  Buffalo. 
They  acted  as  the  factors  and  agents  of  the  plaintiff  in  receiving  and 
selling  at  Buffalo,  and  in  shipping  thence  to  New  York,  property 
consigned  to  them  by  the  plaintiff. 

On  the  12th  of  July,  1853,  the  defendants  had  in  store  5,558 
bushels  of  Ohio  white  wheat,  belonging  to  the  plaintiff.  On  that  day 
the  plaintiff  telegraphed  to  the  defendants  to  sell  on  that  day  this 
wheat  for  one  dollar  and  eight  cents  per  bushel,  or,  if  not  sold  on  that 
day,  to  ship  it  to  Messrs.  Wright,  Gillett  &  Eawson,  in  New  York. 

After  the  receipt  of  this  dispatch,  on  the  12th  of  July,  the  de- 
fendants gave  to  John  T.  Noye  a  sample  of  the  wheat,  and  offered  to 
sell  it  to  him  at  one  dollar  and  eight  cents  per  bushel.  Mr.  Noye 
desired  to  look  at  the  wheat,  and  to  have  till  the  morning  of  the  13th 
of  July  to  determine  whether  he  would  take  it  at  that  price.  The  de- 
fendants gave  him  this  privilege,  provided  no  news  was  received  to 
change  the  value  of  the  wheat. 

On  the  morning  of  the  13th  of  July,  and  at  about  8  o'clock,  Mr. 
Noye  came  to  the  defendants'  office  and  took  the  wheat,  paying  the 
defendants  one  dollar  and  eight  cents  per  bushel  for  it.  The  plaintiff 
never  ratified  this  sale,  but  repudiated  it  at  once,  by  telegraph,  under 
date  of  July  13th.  Some  correspondence  ensued  between  the  parties, 
which  failed  to  result  in  an  adjustment  of  the  controversy,  and  this 
suit  was  brought  to  recover  the  plaintiff's  damages.  The  court  found, 
in  substance,  that  the  sale  was  in  good  faith,  and  because  the  defend- 
ants supposed  they  were  promoting  the  interests  of  the  plaintiff  ;  that 
if  the  wheat  had  been  shipped  on  the  13th,  it  would  have  reached 
New  York  between  July  27th  and  31st,  and  that  the  highest  price 


590      CONVERSION.     RULES   OF   HIGHER   INTERMEDIATE   VALUE. 

down  to  August  4th  was  $1  31 — the  expense  of  transportation,  aside 
from  insurance,  storage,  and  other  charges,  being  15J  cents  per 
bushel.  The  value  of  the  wheat  in  the  New  York  market,  between 
July  25th  and  November  29th,  fluctuated  between  $1  25  and  $1  G5  ; 
being  at  the  last  named  sum  at  the  last  named  date. 

The  court  decided  that  the  sale  of  the  wheat  was  unauthorized 
and  illegal,  and  that  the  measure  of  damages  was  the  difference  be- 
tween the  price  for  which  the  wheat  was  sold,  and  what  it  was  worth 
at  a  reasonable  time  after  the  sale,  within  which  to  commence  the  ac- 
tion. The  court  fixed  the  29th  of  November,  1853,  as  such  reason- 
able time.  The  wheat  was  then  worth,  in  the  city  of  New  York,  one 
dollar  and  sixty-five  cents  per  bushel.  The  court  took  this  value,  and 
deducted  therefrom  the  cost  of  transportation  of  the  wheat  from 
Buffalo  to  New  York,  and  the  storage  and  keeping  of  the  property 
till  the  29th  of  November,  making  twenty  cents  and  one-quarter  of  a 
cent  per  bushel.  The  difference  between  the  price  at  which  the 
wheat  sold,  and  its  value  on  the  day  fixed  by  the  court,  was  thirty-six 
cents  and  three-quarters  of  a  cent  per  bushel,  for  which,  with  interest, 
the  court  gave  judgment,  making  in  the  aggregate  the  sum  of 
$2,764  44,  and  the  costs  of  the  action. 

The  defendants  excepted  to  the  decision  of  the  court, 

First.  As  being  contrary  to  evidence,  and  as  to  the  measure  of 
damages,  and  also  to  that  part  of  the  finding  which  held  that  the  sale 
was  unauthorized  and  illegal ;  they  contended  they  substantially  com- 
plied with  the  plaintiff's  instructions. 

Second.  They  excepted  to  the  decision  relative  to  the  measure  of 
damages  prescribed  by  the  court ;  they  claimed  the  damages  were 
merely  nominal,  at  least  that  the  plaintiff  ought  not  to  recover  more 
than  the  difference  between  the  price  received  and  what  it  would 
have  been  when  the  wheat  could  have  been  transported  to  and  sold  in 
the  city  of  New  York,  fixing,  as  that  time,  August  2d. 

Third.  They  excepted  to  the  decision  that  a  reasonable  time  after 
the  sale,  within  which  to  commence  the  action,  was  the  29th  of  No- 
vember. 

Hogeboom,  J. — This  is  an  action  by  a  principal  against  his  factors, 
to  recover  damages  for  an  unauthorized  and  illegal  sale  of  his  prop- 
erty ;  and  the  question  in  the  case  is  as  to  the  proper  rule  of  dam- 
ages. 

The  complaint  contains  two  counts.  The  first  is  for  a  neglect  and 
refusal  to  obey  plaintiff's  instructions  to  sell  his  wheat  at  Buffalo,  at 
a  particular  date,  at  $1  08  per  bushel,  or,  in  the  event  of  their  not 
doing  so  on  such  day,  to  ship  same  to  New  York;  and  for  a  violation 


SCOTT    v.    ROGERS.  591 

of  his  instructions  in  selling  the  same  at  Buffalo  for  the  price  men- 
tioned at  a  subsequent  date,  whereby  plaintiff  was  deprived  of  large 
gains  and  profits  in  the  sale  thereof. 

The  second  count  is  for  a  neglect  and  refusal  to  ship  the  wheat  to 
New  York,  pursuant  to  instructions,  and  for  shipping,  using  and  dis- 
posing of  the  same  in  their  own  name  and  behalf,  contrary  to  the 
plaintiff's  instructions,  whereby  plaintiff  lost  the  wheat  and  large 
gains  and  profits  in  the  sale  thereof. 

The  damages  claimed  in  the  complaint  are,  under  the  first  count,, 
the  difference  in  price  between  the  wheat  as  sold  and  what  it  would 
have  sold  for  in  New  York  ;  and,  under  the  second  count,  the  value 
of  the  wheat  in  the  city  of  New  York,  deducting  in  each  case  the  ex- 
pense of  transportation.     There  is  also  a  claim  for  general  relief. 

The  gist  of  the  action,  therefore,  is  for  a  breach  of  duty  in  making 
sale  of  the  wheat  in  violation  of  the  instructions  of  the  plaintiff,  and 
in  converting  the  same  to  the  defendants'  use,  resulting  in  the  loss  of 
the  wheat  to  the  plaintiff,  and  in  the  loss  by  him  of  large  gains  and 
profits  in  the  sale  thereof. 

This  embraces  essentially  a  cause  of  action  in  case  and  in  trover, 
and  entitles  the  plaintiff  to  the  damages  recoverable  in  those  actions. 
I  am  not  aware  that,  in  the  absence  of  fraud  or  misrepresentation,  or 
willful  misconduct,  there  is  any  difference  in  the  rule  of  damages  ap- 
plicable to  this  case,  whether  the  action  be  for  a  breach  of  contract  or 
for  a  violation  of  duty ;  and  I  agree  with  one  of  the  judges  who  de- 
livered opinions  on  the  former  argument,  and  with  the  Superior  Court 
of  New  York  in  Suydam  v.  Jenkins  (3  Sandf.  S.  C.  614),  that  there 
should  be  none.  The  question  is  one  of  complete  indemnity  to  the 
party  injured.  It  is  not  stated  in  terms,  and  perhaps  not  in  effect, 
that  the  sale  by  the  defendants  was  fraudulent  or  in  bad  faith ;  and, 
therefore,  no  damages  founded  specially  on  that  ground,  ought  to  be 
recovered.  But  it  is  stated  that  the  sale  was  without  authority  and  in 
violation  of  instructions,  and,  therefore,  every  damage  consequent 
upon  such  a  sale  should  be  allowed.  It  is  not  stated  that  the  in- 
structions to  ship  to  New  York  were  with  a  view  to  the  immediate 
sale  of  the  wheat  on  its  arrival  in  New  York,  and,  therefore,  the 
plaintiff  should  not  be  limited  to  the  price  of  the  wheat  immediately 
after  it  would  have  arrived  in  New  York,  if  forwarded  according  to 
the  plaintiff's  instructions.  But  it  is  stated,  inferentially  at  least,  that 
the  order  to  ship  to  New  York  was  with  a  view  to  an  ultimate  sale 
there,  inasmuch  as  it  is  stated  that,  by  the  act  of  the  defendants,  the 
plaintiff  lost  large  gains  and  profits  in  the  sale  of  the  wheat ;  and 
hence  we  may,  perhaps,  safely  infer  that  the  object  of  the  plaintiff 


592      CONVERSION.     RULES    OF   HIGHER   INTERMEDIATE   VALUE. 

was  eventually  to  make  sale  of  the  wheat.  Perhaps,  if  this  would  in- 
volve a  more  restricted  rule  of  damages  than  would  otherwise  obtain, 
the  plaintiff  is  not  limited  to  it,  inasmuch  as  there  is  in  the  complaint 
substantially  an  allegation  of  an  illegal  conversion  of  the  property  by 
the  defendants,  entitling  the  plaintiff  to  such  damages  as  belong  to 
such  a  cause  of  action. 

The  causes  of  action  in  the  complaint  were  sustained  by  the  evi- 
dence. There  was  a  plain  violation  of  instructions  by  the  defendants, 
though  probably  not  in  bad  faith,  and  a  sale  by  them  at  Buffalo  or 
Tonawanda  at  a  date  when  they  were  expressly  ordered  to  ship  to 
New  York.  This  was  a  clear  breach  of  duty,  and,  in  effect,  a  conver- 
sion of  the  property;  and  the  question  returns,  what  damages  was  the 
plaintiff  entitled  to  recover  ? 

If  the  plaintiff's  orders  had  been  obeyed,  he  would  have  retained 
his  property,  and  might,  if  he  had  so  chosen,  have  kept  the  same  up  to 
the  time  of  the  trial,  when  a  recovery  for  the  value  thereof  would,  in 
effect,  and  by  operation  of  law,  have  transferred  the  title  thereto  to 
the  defendants ;  or  he  might  have  elected  his  own  time  and  place  for 
the  sale  thereof.  Of  both  of  these  rights  he  was  deprived  by  the  act 
of  the  defendants  ;  and  the  defendants  must  make  the  plaintiff  good. 
There  is  nothing  in  the  case  or  in  the  evidence  by  which  we  can  pre- 
cisely ascertain  what  the  plaintiff  would  have  done  with  the  property 
if  he  had  retained  it ;  and  this  presents  one  of  the  chief  difficulties  in 
ascertaining,  an  point  of  fact,  the  damages  which  the  plaintiff  has  sus- 
tained. If  he  designed  an  immediate  sale  thereof,  on  its  arrival  in 
New  York,  the  price  at  which  he  could  have  sold  it  at  that  time,  as 
compared  with  the  price  which  the  defendants  got  for  it,  and  which, 
from  a  stipulation  in  the  case,  we  are  authorized  to  infer,  has  been 
paid  over  to  the  plaintiff,  would  show  the  loss  sustained  by  him.  But, 
as  before  stated,  neither  the  allegations  in  the  complaint  nor  the  evi- 
dence in  the  case  discloses  any  clear  proof  of  an  intent  to  make  an 
immediate  sale ;  and  I  think,  as  well  under  well  settled  rules  of  law 
as  the  reason  and  spirit  of  the  case,  the  plaintiff'  ought  not  to  be  lim- 
ited to  such  damages.  He  may  be  supposed  to  have  been  reasonably 
conversant  with  the  market  and  with  the  prospects  of  a  rise  in  price, 
and  to  have  anticipated,  to  some  extent,  the  results  as  to  such  rise, 
which  subsequent  events  verified.  What  precisely  he  would  have 
clone  is,  as  before  stated,  a  question  of  difficult  solution.  If,  at  some 
subsequent  time  within  a  reasonable  period  after  the  conversion,  he 
had  notified,  the  defendants  of  his  election  to  adopt  the  price  at  that 
period,  I  think  that  would  have  fixed  a  reasonable  and  lawful  stand- 
ard for  the  estimate  of  damages.     It  would  have  been  saying,  in  sub- 


SCOTT  v.   ROGERS.  593 

stance,  I  elect  to  consider  the  property  as  mine  up  to  this  period  ;  I 
now  elect  to  make  sale  of  it,  and  I  hold  you  responsible  for  the 
present  value  of  the  property.  But  no  such  course  was  taken.  No 
notice  was  ever  given,  otherwise  than  such  as  is  to  be  inferred  from 
the  commencement  of  the  suit.  No  suit  was  commenced  until  years 
afterwards ;  and  it  is  now  claimed  to  be  the  legal  rule  that  the  ag- 
grieved party  may  make  price  at  any  time  after  the  conversion  and 
before  the  trial  of  the  cause,  or,  at  least,  that  he  may  do  so  provided 
the  suit  is  commenced  within  a  reasonable  time  after  the  conversion. 
This  was  the  rule  adopted  at  the  trial,  with  this  qualification,  that  the 
price  at  the  commencement  of  a  suit,  commenced  within  a  reasonable 
time  after  the  conversion,  instead  of  the  price  at  the  time  of  the  trial, 
furnished  the  criterion  for  estimating  the  damages. 

In  the  absence  of  any  definite  means  for  ascertaining  the  period 
when  the  owner  of  the  property  would  have  disposed  of  it,  we  are 
necessarily  more  or  less  in  the  dark  as  to  the  amount  of  injury  which 
he  has  sustained  by  the  illegal  act  of  the  defendants,  and  are  driven 
to  resort  more  or  less  to  conjecture,  or  to  fix  upon  some  arbitrary 
period  for  determining  the  price  of  the  property.  It  is  obviously  a 
rule  of  doubtful  justice  to  give  to  the  plaintiff  the  whole  period  until 
the  statute  of  limitations  would  attach  for  the  commencement  of  his 
action,  and  the  whole  period  intervening  between  the  conversion  and 
the  trial  to  select  his  standard  of  price,  without  ever  having  given 
notice  of  his  intention  to  adopt  the  price  of  any  particular  period.  A 
much  more  just  and  equitable  rule,  independent  of  adjudications 
upon  this  question,  would  seem  to  be,  to  allow  to  the  plaintiff  some 
reasonable  period  within  the  statute  of  limitations  for  fixing  the  price 
of  the  property,  provided  he  notifies  the  adverse  party  at  the  time  of 
such  act  on  his  part ;  but  never  to  allow  him  unlimited  liberty  of  se- 
lection as  to  the  price  of  which  he  will  avail  himself  at  the  trial  of  the 
cause.  If  he  does  not  make  and  notify  his  election  of  time,  then  to 
fix  the  time  by  the  day  of  commencing  the  action,  provided  the  action 
be  commenced  within  a  reasonable  time  after  the  conversion.  This  is 
an  election  to  hold  the  defendant  liable  for  the  conversion,  and  in  ef- 
fect to  treat  the  property  as  his.  The  time  of  the  trial  and  verdict  is 
it  is  time,  the  time  of  the  actual  transfer  of  the  property  to  the  de- 
fendant by  operation  of  law,  or,  rather,  the  payment  or  collection  of 
the  sum  recovered  completes  and  perfects  the  legal  transfer  to  the  de- 
fendant. But  the  commencement  of  the  suit  is  the  election  to  hold 
the  defendant  liable  from  and  after  that  date  for  the  value  of  the 
property.  This,  as  it  appears  to  me,  is  justice  done  to  both  parties. 
The  defendant,  by  converting  the  property,  becomes  liable  for  its 
38 


594      CONVERSION.     RULES   OF   HIGHER   INTERMEDIATE    VALUE. 

value.  If  the  plaintiff  elects  to  take  its  value  as  of  that  date,  the  de- 
fendant has  had  the  benefit  of  that  precise  sum.  If  the  plaintiff  at 
any  time  makes  price,  and  notifies  the  defendant,  whether  it  be  by  a 
specific  notice  before  the  commencement  of  the  suit,  or  by  the  actual 
commencement  of  the  action,  the  defendant  can  go  into  the  market 
and  sell  the  property  of  the  plaintiff  which  he  has  theretofore  con- 
verted to  his  use  and  realize  its  market  value,  or,  if  he  has  disposed  of 
it,  sell  the  property  which,  at  the  time  of  the  illegal  conversion,  if  he 
wishes  to  protect  himself  from  loss,  he  is  legally  bound  to  provide 
himself  with  as  a  substitute  for  it,  to  meet  the  plaintiff's  demands. 
Thus  the  defendant  can  substantially  indemnify  himself  against  loss ; 
and  if  he  fails  to  take  measures  to  do  it,  is  justly  responsible  in  dam- 
ages for  his  unwarranted  aggression  upon  the  rights  of  the  plaintiff. 
This  seems  to  me  the  just  and  equitable  rule. 

It  is  not,  however,  perhaps  quite  the  rale  which  has  obtained  in 
the  law  for  settling  the  question  of  damages  in  the  case  of  an  illegal 
conversion  of  property.  I  think  that  rule  is  too  well  settled  now  to 
be  shaken,  whatever  we  may  think  of  its  intrinsic  justice  and  pro- 
priety ;  and  there  are  strong  reasons  to  be  urged  in  its  favor  in  these 
respects.  The  defendants'  counsel  wish  to  unsettle  it ;  but  it  is  better 
to  abide  by  a  rule  of  law  that  is  firmly  established  in  repeated  adjudi- 
cations of  the  courts,  than  to  have  a  fluctuating  rule  which  is  con- 
stantly varying  according  to  the  caprice  or  the  fallible  judgment  of 
judges  and  juries. 

I  think  the  rule  of  damages  applicable  to  cases  of  this  descrij^tion 
is  reasonably  well  settled  to  be  as  liberal  as  this  in  favor  of  the  plaint- 
iff, to  wit :  to  allow  to  the  plaintiff  the  highest  price  for  the  property 
prevailing  between  the  time  of  conversion  and  a  reasonable  time 
afterwards  for  the  commencement  of  the  action.  Some  of  the  cases 
carry  the  period  up  to  the  time  of  trial  of  a  suit  commenced  within  a 
reasonable  time  ;  and  as  between  these  two  periods — the  time  of  com- 
mencing the  suit  and  the  time  of  trial — the  rule  is  somewhat  fluctua- 
ting. What  this  reasonable  time  shall  be,  has  never  been  definitely 
settled,  and  may,  perhaps,  fluctuate  to  some  extent  according  to  the 
circumstances  of  the  particular  case.  In  the  case  at  bar,  it  was  held 
to  be  four  months  after  the  conversion,  which  terminated  before  the 
close  of  navigation  in  that  year ;  which  latter  circumstance  might 
perhaps  be  supposed  to  have  some  probable  influence  in  raising  the 
market  price  of  the  property  in  New  York,  and  therefore  as  not  un- 
likely to  induce  the  plaintiff'  to  retain  the  property  until  that  time.  I 
think  the  adjudications  allow  at  least  so  much  latitude  in  cases  simi- 
larlv  circumstanced.     For  reasons  before  stated,  the  limit  of  time  is 


SCOTT   t.    ROGERS.  595 

necessarily  to  some  extent  arbitrary,  for  the  want  of  available  means 
to  determine  when  the  plaintiff  would  have  sold  his  property,  and,  by 
consequence,  the  damages  he  has  sustained.  But  it  has  been  sup- 
posed, and  I  think  reasonably,  that  a  liberal  allowance  of  time  should 
be  made  in  favor  of  the  plaintiff,  and  against  the  defendant,  inasmuch 
as  the  latter  is  the  defaulting  party. 

It  has  been  held  in  cases  where  damages  are  sought  for  the  breach 
of  a  contract  for  the  sale  of  personal  property,  wholly  executory  on 
both  sides,  that  the  true  rule  of  damages  is  the  difference  between  the 
purchase  price  named  in  the  contract  and  the  price  of  the  property  at 
the  time  fixed  for  performance ;  that,  as  nothing  had  been  paid  upon 
the  property,  if  the  plaintiff  still  wished  to  obtain  the  property,  he 
could  go  into  the  market  and  procure  it  with  the  sum  named  in  the 
contract,  with  the  addition  of  its  rise  in  value,  or,  if  he  chose  simply 
to  pocket  the  damages,  he  could  do  so  by  receiving  a  sum  equal  to 
the  difference  in  value  between  the  two  periods,  and  thus  obtain 
complete  indemnity. 

But  that,  where  the  executory  contract  had  been  performed  on 
the  part  of  the  plaintiff  by  the  payment  of  the  price,  and  was  broken 
by  the  defendant  by  the  non-delivery  of  the  property,  the  true  rule  of 
damages  was  to  allow  to  the  plaintiff  the  highest  market  price  inter- 
vening between  the  time  of  conversion  and  the  time  of  the  com- 
mencement of  the  action  or  of  the  trial  when  the  action  was  com- 
menced within  a  reasonable  time  after  the  conversion,  upon  the  prin- 
ciple that  it  might  be  inconvenient  or  impossible  and  was  unjust  to 
require  the  plaintiff,  in  order  to  procure  a  similar  article  to  that  il- 
legally converted,  to  pay  the  contract  price  a  second  time,  with  the 
added  value  prevailing  at  the  period  of  performance  ;  and  that  it  was 
more  equitable  to  hold  the  defendant  responsible  for  the  fluctuations 
of  the  market,  so  long  as  he  continued  to  deprive  the  plaintiff  of  the 
article  purchased,  up  to  the  period  when,  by  operation  of  law  and  the 
effect  of  a  verdict,  the  title  was  transferred  from  the  plaintiff  to  the 
defendant. 

It  is  further  stated,  in  one  of  the  opinions  delivered  in  this  case  at 
a  former  term  of  this  court,  that  the  present  case  is  in  principle  analo- 
gous to  that  of  an  executory  contract  for  the  purchase  of  the  property 
where  the  purchase-money  is  prepaid,  inasmuch  as  the  plaintiff,  own- 
ing the  property,  has  paid  its  price  and  acquired  an  absolute  title  to 
it,  and  cannot  with  justice  be  called  upon  to  advance  again  the  pur- 
chase-money to  buy  a  similar  article.  I  concur  in  this  reasoning,  and 
think  the  same  principle  governs  both  cases.  The  plaintiff  has,  in  ef- 
fect, advanced  the  price  of  the  article ;  he  has  done  more ;  he  has  be- 


596      CONVERSION.     RULES   OF   HIGHER   INTERMEDIATE   VALUE. 

come  its  absolute  owner.  He  is  not  to  be  required  to  purchase  simi- 
lar property  anew,  for  he  may  not  be  in  a  condition  to  do  so,  and  he 
has  lost  his  property,  not  by  any  fault  of  his  own,  but  by  an  unjus- 
tifiable appropriation  of  it  by  another  party.  On  the  other  hand,  his 
adversary  has,  without  legal  right,  possessed  himself  of  another's  prop- 
erty, and  placed  himself  in  a  situation  where  he  may  possibly -realize 
large  gains  from  property  thus  arbitrarily  acquired. 

The  difficulty  lies  in  fixing  the  precise  period  when  the  value  of 
the. property  should  be  estimated.  I  think  it  must,  in  all  cases,  be  a 
reasonable  time  after  the  conversion.  Even  if  the  evidence  is  satis- 
factory that  the  plaintiff  intended  to  retain  the  property,  I  do  not 
think  he  should  be  permitted  to  roam  through  the  entire  period  be- 
tween the  conversion  and  the  time  when  the  statute  of  limitations 
would  attach,  for  the  purpose  of  discovering  the  highest  price  at 
which  the  property  sold  in  market.  This  gives  to  the  transaction  the 
color  of  a  mere  speculation,  and  not  of  a  just  ascertainment  of  dam- 
ages actually  sustained.  The  plaintiff"  might  repossess  himself  of  the 
article  lost,  if  not  restored  to  him  by  the  act  of  the  offending  party 
within  a  reasonable  time  after  he  has  been  deprived  of  it,  and  this 
would  make  him  good.  The  defendant,  in  default  of  a  restoration  of 
the  property  or  an  article  of  similar  quality,  should  be  held  to  answer 
for  its  value  within  a  reasonable  period.  To  compel  him  to  respond 
for  a  succession  of  years  for  fluctuations  in  value,  would  seem  unjust 
and  oppressive. 

Where  the  party,  as  in  this  case,  holds  the  property  for  the  pur- 
pose of  traffic  and  sale,  a  reasonable  period,  according  to  the  course  of 
trade,  should  be  allowed  for  the  purpose  of  making  such  sale.  If  it 
be  clear  upon  the  evidence  that  an  immediate  or  speedy  sale  were 
contemplated,  I  think  such  a  fact  would  contract  the  limits  of  this 
reasonable  period.  If  it  were  clear  that  months  were  expected  to  in- 
tervene before  a  sale  should  take  place,  I  see  no  objection  to  extend- 
ing this  reasonable  period  to  a  similar  length.  If  the  evidence  re- 
flected no  light  on  the  subject,  then  a  reasonable  period  would  prob- 
ably be  a  question  of  law,  or,  if  some  evidence  were  introduced, 
might  be  a  mixed  question  of  law  and  fact. 

I  am  unable  to  see  that,  on  this  question  of  reasonable  time,  the 
judge  at  the  circuit  committed  any  error  which  the  facts  in  the  case 
enable  us  to  pronounce  such,  or  of  which  the  defendant  is  in  a  situa- 
tion to  avail  himself.  The  judge  charged — or  held,  for  the  trial  was 
before  the  judge  without  a  jury — that  the  measure  of  damages  was 
the  difference  in  price  of  the  wheat  at  the  time  of  the  conversion 
and  a  reasonable  time  afterwards  within  which  to  commence  the  ac- 


PAGE   v.   FOWLER.  597 

tiori ;  and  in  the  light  of  what  has  been  already  said,  I  think  the  rule 
of  law  is  therein  well  expressed.  He  further  held,  that  such  reason- 
able period  was  four  months  after  the  time  when  the  wheat,  if  duly 
forwarded,  would  have  reached  its  destination  in  the  city  of  New 
York.  This  is  supposed  to  have  been  error.  By  what  legal  rule  are 
we  entitled  to  pronounce  this  to  be  error  ?  What  is  there  in  the  evi- 
dence to  show  that  this  was  an  unreasonable  time?  The  party  al- 
leging error  must  show  it — the  presumption  being  in  favor  of  the  cor- 
rectness of  the  ruling.  Is  it  claimed  that  the  reasonableness  of  the 
time  depended  on  the  circumstances  of  the  case,  and  was  a  question 
of  fact  ?  Then  the  judge  has  found  the  fact  against  the  defendant-, 
and  they  are  remediless.  No  request  was  made  to  find  any  specific 
time  as  the  reasonable  time,  nor  objection  made  to  the  decision  of  the 
question  of  reasonable  time  as  a  question  of  fact  by  the  judge,  so  far 
as  there  was  a  question  of  fact  involved  in  it.  An  exception  was 
taken,  it  is  true,  to  the  determination  of  the  judge,  that  the  29th  of 
November  was  a  proper  date  to  make  the  valuation  of  the  wheat ;  but 
there  is  no  evidence  to  show  that  that  time  was  unreasonable,  and, 
therefore,  the  only  question  presented  is  one  of  law,  whether  the  de- 
fendant was  liable  to  have  the  damages  estimated  by  the  price  of  the 
wheat  at  a  reasonable  time  after  the  conversion. 

I  am  of  opinion  that  the  judgment  of  the  court  below  should  be 
affirmed. 

Dexio,  Ch.  J.,  Davies,  Weight,  Selden  and  Ixgraham,  JJ.,  con- 
curred in  affirming  the  judgment ;  Mullen,  J.,  was  for  reversal. 

Judgment  affirmed. 


Damages  ;  Measure  of  in  Actions  foe  Recovery  of  Personal 

Property. 


SUPREME  COURT  OF  CALIFORNIA. 

[1870.]  Page  v.  Fowler  (39  Oal.  412). 

In  actions  for  the  recovery  of  personal  property  of  a  fluctuating  value,  where  exemplary 
damages  are  not  all  >wed,  the  correct  measure  of  damage-;  i~  the  highest  market 
value  within  a  reasonable  time  after  the  property  was  taken,  with  interest  from  the 
time  such  value  was  estimated. 

Appeal  from  the  District  Court  of  the  Fourth  District,  City  and 
County  of  San  Francisco. 

The  facts  are  stated  in  the  opinion. 


598      CONVERSION.     RULES   OF  HIGHER   INTERMEDIATE   VALUE. 

Temple,  J.,  delivered  the  opinion  of  the  court,  Crockett,  J., 
and  Spkague,  J.,  concurring. 

The  main  facts  of  this  case  are  almost  precisely  the  same  as  in 
Page  v.  Fowler  (28  Cal.  605,  and  37  Cal.  100). 

The  plaintiff  was  in  possession  of  about  eight  hundred  acres  of 
land,  which  had  been  inclosed  for  many  years,  and  which  he  claimed 
to  own  under  the  so-called  Suscol  grant.  In  the  summer  of  1862, 
while  crops  put  in  by  plaintiff  were  still  growing  upon  the  land,  the 
defendants  entered,  claiming  one  hundred  and  sixty  acres  of  land 
each,  as  preemptioners.  They  built  small  houses  upon  their  respec- 
tive claims,  where  they  afterwards  lived.  They  each  possessed  the 
requisite  qualifications  to  become  preemptioners,  and  each  took  the 
necessary  steps  to  enter  the  lands  in  the  proper  land  office  of  the 
United  States.  They  were  unsuccessful,  however,  in  their  attempts 
to  preempt,  and  the  plaintiff  finally  recovered  a  judgment  against 
them  for  the  land.  In  May,  1863,  while  they  were  in  possession, 
and  before  the  judgment  in  ejectment,  they  cut  a  quantity  of  hay 
upon  the  land,  which  was  taken  by  the  plaintiff  by  the  writ  of  re- 
plevin in  this  suit. 

[After  considering  some  questions  not  relating  to  the  measure  of 
damages,  and  holding  that  a  joint  judgment  in  favor  of  several  de- 
fendants having  no  community  of  interest  or  ownership  of  the 
property  was  wrong,  the  learned  judge  proceeded  as  follows  :] 

The  only  remaining  question  in  the  case  is  as  to  the  rule  of  dam- 
ages adopted  on  the  trial.  The  plaintiff  having  failed  to  make  out 
his  case,  of  course  the  defendants  were  entitled  to  recover  the  value 
of  the  hay  taken  and  disposed  of  by  him.  The  hay  was  taken  in 
May,  1863,  at  which  time  it  was  worth,  in  the  condition  it  was  in, 
from  three  to  five  dollars  per  ton.  It  was  baled  at  an  expense  of 
three  dollars  per  ton,  hauled  to  Benicia  at  an  expense  not  proven, 
and  from  there  shipped  to  San  Francisco  at  an  expense  of  two  and 
one-half  dollars  per  ton.  It  was  sold  at  San  Francisco  at  twelve  and 
one-half  dollars  per  ton,  which  is  not  questioned  as  being  the  highest 
price  that  could  have  been  obtained  for  it.  The  defendants  proved 
that  in  1861,  which  was  a  year  of  great  scarcity — sometimes  called 
the  year  of  the  drought — hay  was  -worth  from  thirty-eight  to 
forty  dollars  per  ton.  At  the  request  of  the  defendants,  court 
instructed  the  jury  that,  "  in  assessing  the  value  of  the  property, 
they  might  find  the  highest  market  value  at  any  time  since  the  hay 
was  taken  by  the  plaintiff,  with  interest,"  etc.  Under  this  instruc- 
tion, the  jury  assessed  the  value  of  the  property  according  to  the 
price  in  1864,  and  the  defendants  recovered  $25,763  23  for  property 


PAGE   v.   FOWLER.  599 

which,  at  the  time  it  was  taken,  was  not  worth  more  than  $2,500. 
As  the  trial  was  in  November,  A.  D.  1869,  under  the  rule,  the  value 
could  as  well  have  been  estimated  by  the  market  place  at  the  time  of 
trial,  and,  if  the  value  of  hay  had  been  greater  than  at  any  previous 
time  after  the  taking,  that  course  would  undoubtedly  have  been 
pursued. 

When  we  consider  that  the  object  to  be  attained  by  this  rule  is 
indemnity  for  loss  actually  sustained,  the  result  in  this  case  is  suffi- 
ciently startling.  But  the  rule  is  claimed  to  be  of  universal  appli- 
cation, and  as  to  a  large  class  of  personal  property,  to  wit :  perishable 
articles,  its  operation  is  still  more  manifestly  unjust.  If  a  quantity 
of  fruit — strawberries,  for  instance — in  the  season  of  their  greatest 
abundance,  were  taken  under  circumstances  which  would  entitle  the 
owner  to  indemnity  only,  and  a  suit  to  recover  their  value  were 
immediately  commenced,  the  trial  would  not  be  likely  to  occur  for 
many  months.  In  the  meantime  the  season  of  plenty  has  passed 
and  the  fruit  bears  an  extraordinary  price.  Nevertheless,  by  this 
rule,  he  is  permitted  to  recover  the  enhanced  value  which  he  could 
never  have  realized,  and  this  under  the  pretense  that  it  is  necessary 
to  indemnify  him  for  his  actual  loss.  This  is,  of  course,  an  extreme 
case,  and  may  be  said  to  prove  only  that  there  should  be  exceptions 
to  the  rule ;  but  I  think  that  the  rule  is  necessarily  liable  to  work 
injustice  in  every  case.  In  the  cases  where  it  has  been  inforced  it  is 
said  to  apply  only  to  articles  which  fluctuate  in  value.  If  there  is 
anything  which  can  be  said  to  have  a  market  value  that  does  not 
fluctuate,  of  course  it  can  make  no  difference  when  the  value  is 
ascertained.  This  distinction,  therefore,  might  as  well  be  omitted, 
and  the  rule  applied  indiscriminately  to  all  descriptions  of  personal 
property.  If  goods  belonging  to  a  merchant  and  designed  for  im- 
mediate sale  were  taken,  the  trial  of  a  suit  brought  to  recover  their 
value  might,  for  reasons  well  understood  by  every  member  of  the 
bar,  and  in  the  usual  course  of  things  would  be  postponed  for  years. 
The  highest  price  might  be  ten  years  after  the  sale,  and  yet  it  would 
be  morally  certain  that,  had  the  goods  not  been  taken,  the  owner 
would  have  disposed  of  them  within  the  next  few  months.  It  is 
obvious  that  the  damages  in  such  a  case  (and  the  supposed  case  is 
the  general  rule)  might  be  grossly  unjust,  and  have  very  little  refer- 
ence to  the  loss  actually  sustained. 

Without  the  possibility  of  loss,  the  owner  is  allowed  the  range' 
of  the  market  for  many  years  in  which  to  choose  his  price,  and 
perhaps  realizes  enormous  profits,  in  the  face  of  proof  to  a  moral 
•certainty  that,  had  he  kept  the  goods,  he  would  not,  and,  perhaps. 


600      CONVERSION.     RULES   OF   HIGHER    INTERMEDIATE   VALUE. 

could  not  have  received  them.  The  best  possible  speculation  would 
be  to  have  one's  property  taken  by  a  responsible  person,  and  this 
under  a  rule  which  only  indemnified  for  actual  loss,  and  does  not 
permit  speculative  or  hypothetical  damages  to  be  recovered,  and  in 
which  nothing  is  exacted  a  punishment  to  the  wrong-doer.. 

The  cases  of  Douglass  v.  Kraft  (9  Cal.  562),  and  Hamer  v.  Hath- 
away (33  Cal.  117),  are  relied  upon  to  support  the  rule  adopted  in 
this  case.  The  first  was  for  the  conversion  of  certain  warrants,  and 
the  court  say  that  the  plaintiff  is  entitled  to  the  highest  value  after 
the  conversion,  and  base  their  opinion  upon  the  case  of  Mercer  v. 
Jones  (3  Camp.  476),  where  Abbott,  C.  J.,  says,  in  substance,  that 
the  jury  may,  in  their  discretion,  fix  the  value  at  any  time  after  the 
conversion,  and  the  case  of  Castelyou  v.  Lansing,  in  which  Kent 
says  simply  that  in  trover  the  rule  is  not  always  the  value  of  the 
goods  at  the  time  of  the  conversion.  In  this  case  no  question  arose 
as  to  the  propriety  of  estimating  the  value  by  the  market  price  at 
an  indefinite  period  after  the  taking. 

In  Hamer  v.  Hathaway  the  question  was,  whether  the  highest 
price  between  the  taking  and  the  trial,  or  the  price  at  the  time  of 
the  taking,  was  the  rule.  The  court  say  it  is  not  an  open  question 
in  this  State;  that  elsewhere  there  is  a  great  diversity  of  opinion  as 
to  which  is  the  proper  rule  ;  that  it  is  important  to  have  a  settled 
rule  for  this  State,  and  they  approve  that  in  Douglass  v.  Kraft.  In 
that  case,  also,  as  in  most  cases  holding  to  this  rule,  the  only  question 
discussed  was  whether  the  damages  must  be  assesssed  at  the  value 
of  the  property  at  the  time  of  the  conversion.  The  court  held 
differently,  and  though  no  question  was  raised  as  to  what  would  be 
the  rule  under  different  circumstances,  say  "  some  qualification  of 
the  rule  may  be  found  necessary  where  there  has  been  unreasonable 
delay  in  bringing  suit,  or  under  special  circumstances,  which  do  not 
exist  in  the  present  case  ;  but  we  are  content  to  follow  the  general 
rule  announced  in  Douglass  v.  Kraft." 

If  we  leave  this  State,  the  cases  are  exceedingly  numerous  and 
very  conflicting.  It  would  be  impossible  to  deduce  any  consistent 
rule  from  them  ;  and  I  agree  with  Mr.  Justice  Rhodes — in  Hamer  v. 
Hathaway — that  it  is,  perhaps,  more  important  to  have  a  fixed  rule 
than  that  it  should  be  entirely  above  question  upon  principle  ;  and 
the  general  rule  adopted  in  this  State,  when  properly  qualified,  com- 
•  mends  itself  to  my  mind  as  founded  in  justice,  and  I  think  the 
required  qualification  can  be  easily  derived  from  the  cases  by  which 
the  rule  was  established. 

In  Suydam  v.  Jenkins  (3  Sandf.  614),  Mr.  Justice  Dder,  in  an 


PAGE   v.   FOWLER.  601 

opinion  by  far  the  most  able  and  satisfactory  I  have  been  able  to 
find  upon  the  subject,  reviews  all  the  authorities  upon  this  subject, 
both  English  and  American,  and,  as  I  think,  establishes,  beyond 
question,  that  this  doctrine  never  did  prevail  in  England,  and  that 
the  cases  of  "West  v.  Went  worth  (3  Cow.  82),  and  Clark  v.  Pinney 
(7  Cow.  681),  were  innovations  upon  the  common  law,  and  were 
founded  upon  an  entire  misapprehension  of  the  English  cases  they 
profess  to  follow.  I  have  carefully  verified  all  the  references  in 
those  cases,  and  fully  concur  with  Judge  Duer  that  those  cases  not 
only  do  not  establish  the  proposition,  but  contain  no  allusion  what- 
ever to  the  subject.  The  English  rule,  so  far  as  I  can  discover,  has 
always  been  to  leave  to  the  jury,  as  a  matter  of  discretion,  the  ques- 
tion as  to  the  time  the  property  shall  be  valued,  except  in  the  case 
of  stocks,  when  the  value  at  the  time  of  trial,  was  the  measure  of 
damages.  In  the  United  States,  on  the  other  hand,  it  has  always 
been  considered  a  rule  of  law,  and  the  jury  are  allowed  no  discretion 
in  the  matter. 

The  doctrine  is,  therefore,  as  I  think,  of  American  origin,  and 
it  may  be  remarked  that  all  the  cases  concur  in  admitting  that  the 
general  rule  is  that  the  damages  are  to  be  measured  by  the  value  of 
the  property  at  the  time  it  was  taken,  the  doctrine  in  question  being 
an  exception  to  the  rule  ;  and  though  the  exception  has,  perhaps, 
become  the  rule,  it  may  be  well  to  bear  in  mind  that  it  originated  in 
an  exception  made  on  the  ground  that,  in  certain  cases  (where  the 
market  value  is  fluctuating)  the  prevailing  rule  did  not  do  full  just- 
ice. The  exception  ought  not,  therefore,  to  be  carried  beyond  the 
purpose  for  which  it  was  made.  That  being  accomplished,  the 
ordinary  rule  should  jDrevail.  The  reason  for  it  must  have  been 
that,  in  the  usual  course  of  trade  or  business,  it  was  likely  that  the 
owner  would  have  realized  the  enhanced  value  if  he  had  not  been 
deprived  of  his  property.  All  the  cases  are  upon  the  ground  that 
otherwise  he  would  not  be  completely  indemnified.  It  could  not 
have  been  intended  to  give  him  profits  it  is  certain  he  would  not 
have  realized. 

The  case  of  "West  v.  Wentworth  (3  Cow.  82),  was  the  first  case 
in  which  the  doctrine  is  plainly  asserted.  It  is  a  short  case  founded 
upon  a  misapprehension  of  the  English  cases,  and  the  reason  of  the 
decision,  further  than  this  erroneous  citation  of  authorities,  is  not 
discussed  at  any  length.  In  the  case  of  Clark  v.  Pinney  (7  Cow. 
681),  the  question  was  elaborately  discussed,  and  this  case  may  prop- 
erly be  considered  the  pioneer  case  upon  the  subject.  The  doctrine 
of  West  v.  Wentworth  is  sustained,  but  with  an  important  qualifica- 


602      CONVERSION.     RULES   OF   HIGHER   INTERMEDIATE   VALUE. 

tion.  The  court  say :  "  In  such  case,  therefore,  the  plaintiff  is 
entitled  to  the  highest  price  between  the  day  when  the  delivery 
should  have  been  made  and  the  day  of  trial.  But  where  he  delays 
the  prosecution  of  his  claim  beyond  the  period  which  may  be 
considered  reasonable,  for  the  purpose  of  endeavoring  to  make  an 
amicable  arrangement,  he  must  be  considered  as  assenting  to  the 
delay,  and  ought  to  participate  in  [the  hazard  of  it.  In  such  cases 
we  are  inclined  to  think  the  rule  of  damages  should  be  the  value  of 
the  article  at  the  commencement  of  the  suit." 

The  case  of  Smith  v.  Griffith  (5  Hill,  333),  was  a  case  against  a 
common  carrier  for  goods  damaged  while  in  the  possession  of  the 
earner.  This  question  was  discussed,  and  the  rule  of  damages  is 
laid  down  as  follows  :  "  The  law,  in  regulating  the  measure  of  dam- 
ages, contemplates  a  range  of  the  entire  market,  and  the  average  of 
prices  as  thus  formed  through  a  reasonable  period  of  time." 

The  phrase  "  average  of  prices,"  is  intended  as  a  rule  to  ascertain 
what  the  market  price  is,  and  exclude  exceptional  sales  at  an  extra- 
ordinary price,  and  taken  in  connection  with  other  portions  of  the 
opinion,  the  extract  shows  the  rule  adopted  in  this  case  to  have  been 
the  highest  market  price  within  a  reasonable  time  after  the  property 
was  taken,  or  should  have  been^delivered.  In  the  case  of  Romaine 
v.  Van  Allen  (26  IN".  Y.  309),  the  cases  upon  this  subject  are  said  to 
be  to  the  effect,  that  "  if  the  plaintiff,  without  unnecessary  delay, 
prosecutes  his  suit,  the  fluctuations  in  the  price  should  be  exclu- 
sively at  the  hazard  of  the  defendant,  and  the  plaintiff  was  entitled 
to  the  highest  price  between  the  day  when  the  delivery  should  have 
been  made  and  the  day  of  trial." 

In  the  case  of  Wilson  v.  Mathews  (21  Barb.  295),  which  was  an 
action  of  trover,  the  plaintiff'  was  allowed  to  recover  the  highest 
price  intermediate  the  taking  and  the  trial.  The  court,  in  rendering 
the  opinion,  remarks  :  "  As  no  objection  was  taken  on  the  argument 
that  any  delay  had  intervened,  we  assume  that  the  plaintiff  has  not 
delayed  the  prosecution  of  his  claim  beyond  the  period  which  may 
be  considered  reasonable,  and  that,  therefore,  the  proper  rule  of 
damages  is  the  highest  value  of  the  property  at  any  time  between 
the  day  of  its  conversion  and  the  day  of  trial. 

In  the  case  of  Cannon  v.  Folsom  (2  Iowa,  101),  it  is  said  that  the 
rule  of  damages  for  not  delivering  a  commodity  according  to  con- 
tract, where  the  price  has  been  paid,  is  "  the  highest  market  price 
between  the  day  for  delivery  and  the  time  suit  is  brought,  provided 
the  plaintiff  does  not  unreasonably  delay  the  institution  of  the 
-suit." 


PAGE   v.    FOWLER.  603 

The  case  of  Scott  v.  Rogers  (21  !N".  Y.  676),  was  by  a  principal 
against  his  factors  for  an  unauthorized  sale  of  his  property.  The 
court  decided  that  the  sale  was  unauthorized,  and  that  the  measure 
of  damages  was  the  difference  between  the  price  for  which  the 
wheat  was  sold  and  what  it  was  worth  a  reasonable  time  after  the 
date  within  which  to  commence  the  action.  This  ruling  was  sus- 
tained by  the  Court  of  Appeals  in  an  extended  argument  upon  this 
very  question.  After  stating  it  would  be  unjust  to  allow  the  plaint- 
iff the  whole  time  allowed  by  the  statute  of  limitations,  in  which  to 
commence  his  action,  and  the  time  from  the  commencement  to  the 
trial  in  addition  in  which  to  fix  the  price,  and  that  the  fact  that  the 
right  of  property  passes  by  the  judgment  can  make  no  difference,  Mr. 
Justice  Hogeboom,  who  delivered  the  opinion  of  the  court,  says  the 
rule  is  settled  "  to  allow  the  plaintiff  the  highest  price  prevailing 
between  the  time  of  conversion  and  a  reasonable  time  afterwards 
for  the  commencement  of  the  action.  Some  of  the  cases  carry  the 
period  up  to  the  time  of  trial  of  a  suit  commenced  within  a  reason- 
able time  ;  as  between  these  two  periods,  the  time  of  commencing 
the  suit  and  the  time  of  trial,  the  rule  is  somewhat  fluctuating. 
"What  this  reasonable  time  shall  be  has  never  been  definitely  settled, 
and  may  perhaps  fluctuate  come  what  according  to  the  circumstances 
of  the  particular  case." 

In  the  case  of  Pinkerton  v.  Railroad  (42  !N".  H.  424),  this  rule  of 
damages  is  rejected,  and  this  reason,  among  others,  given  for  it : 
"  In  that  large  class  of  cases  where  the  articles  to  be  delivered  enter 
into  the  common  consumption  of  the  country  in  the  shape  of  pro- 
visions, perishable  or  otherwise,  horses,  cattle,  raw  material,  such  as 
wool,  cotton,  hides,  leather,  dye  stuffs,  etc.,  to  hold  that  the  plaintiff 
might  elect  as  the  rule  of  damages,  in  all  cases,  the  highest  market 
price  between  the  time  fixed  for  the  delivery  and  the  day  of  trial — 
which  is  often  many  years  after  the  breach — would,  in  many  cases, 
be  grossly  unjust  and  give  to  the  plaintiff  an  amount  of  damages 
disproportionate  to  the  injury.  For  in  most  of  the  cases,  had  the 
articles  been  delivered  according  to  the  contract,  they  would  have 
been  sold  or  consumed  during  the  year,  and  no  probability  of  reap- 
ing any  benefit  from  future  increase  of  prices.  So  there  may  1  >e 
repeated  trials  of  the  same  cause  by  review,  new  trial  or  otherwise. 
Shall  there  be  different  measures  of  damages  for  each  trial  ?  " 

In  every  case  which  I  have  been  able  to  find,  where  this  view  of 
the  subject  was  discussed  at  all,  some  qualification  of  the  rule  was 
insisted  upon  ;  and  it  may  be  safely  affirmed  that  the  unqualified 
rule  laid  down  in  this  case  lias  never  been   recognized  as  law  any- 


601      CONVERSION.     RULES   OF  HIGHER   INTERMEDIATE   VALUE. 

where — although,  of  course,  there  are  cases  in  which  the  rule  has 
been  affirmed  without  allusion  to  the  qualification ;  and  if  the 
adjudged  cases  were  not  so,  a  rule  which  would  allow  one  the  high- 
est market  price  for  seven  or  eight  years  as  the  measure  of  damages 
for  conversion  of  hay — an  annual  crop,  and  almost  always  annually 
consumed — is  too  repugnant  to  our  sense  of  justice  and  to  the 
purpose  the  rule  was  designed  to  accomplish — indemnity  for  actual 
loss — to  be  allowed  to  stand,  especially  when  the  rule  itself  is  not 
supported  even  by  a  majority  of  the  adjudications  upon  the  subject. 

In  many  of  the  cases  it  is  said  that  the  plaintiff  will  be  allowed 
the  highest  price  intermediate  the  taking  and  the  trial,  if  the  suit 
has  been  commenced  within  a  reasonable  time  and  prosecuted  with- 
out unnecessary  delay,  and  no  intimation  is  made  as  to  what  the  rule 
would  be  if  the  suit  were  not  commenced  wTithin  a  reasonable  time ; 
but  it  is  evident  that  the  question  of  damages  ought  to  be  the  same 
in  either  case.  The  time  of  the  commencement  of  the  action  or 
trial  would  not  seem  to  have  any  natural  or  logical  connection  or 
relation  to  the  question  of  damages  ;  and  the  question  as  to  whether 
a  suit  was  or  was  not  commenced  within  a  reasonable  time,  would 
rarely,  if  ever,  depend  upon  any  fact  which  would  affect  the  indem- 
nity to  which  the  plaintiff  is  entitled.  The  reasonable  time  men- 
tioned in  the  cases  cannot  mean  a  reasonable  time  within  which  to 
commence  the  action  independently  of  the  question  of  damages.  It 
must  mean  a  time  within  which  it  would  be  reasonable  to  allow  the 
plaintiff  to  take  the  highest  market  price  as  the  measure  of  his 
damages.  In  other  words,  the  rule  deducible  from  the  authorities 
is,  that  in  cases  affecting  property  of  a  fluctuating  value,  where 
exemplary  damages  are  not  allowed,  the  correct  measure  of  damages 
is  the  highest  market  value  within  a  reasonable  time  after  the 
property  was  taken,  with  interest  computed  from  the  time  such 
value  was  estimated.  This  is,  in  effect,  the  rule  established  in  Scott 
v.  Rogers,  where  this  precise  question  was  more  elaborately  dis- 
cussed than  in  any  other  case. 

The  rule  thus  stated  may  be  somewhat  indefinite,  but  it  is 
certainly  not  more  so  than  the  rule  in  the  New  York  cases,  which 
have  reference  to  the  commencement  of  the  action  or  its  diligent 
prosecution  ;  and  the  rule  thus  stated  has  this  advantage,  that  what 
is  a  reasonable  time  would  always  be  determined  with  reference  to 
the  question  of  indemnity  ;  and  if  the  old  standard  of  the  value  at 
the  time  of  the  taking  be  once  departed  from,  I  can  think  of  no 
rule  more  definite  which  would  not  be  arbitrary  and  liable  to  work 
injustice. 


PAGE   v.   FOWLER.  605 

What  would  be  a  reasonable  time  within  which  to  allow  the 
injured  party  the  range  of  the  markets  to  fix  the  value,  must  depend 
in  a  great  measure  upon  the  circumstances  of  each  case.  In  very 
many  cases,  this  could  easily  be  fixed  by  the  nature  of  the  article, 
the  use  for  which  it  was  intended  or  the  usual  course  of  business 
upon  which  value  depended.  The  object  of  allowing  this  range  at 
all,  as  I  have  said,  is  because  the  owner  might,  and  perhaps  would, 
have  obtained  the  price,  if  he  had  been  allowed  to  retain  the  prop- 
erty, and  the  object  will  control  in  fixing  the  limit  allowed  for 
estimating  the  value.  When  goods  are  taken  from  a  merchant  he 
should  not  be  allowed  a  longer  period  than  it  would  probably 
require  in  the  usual  course  of  business  to  dispose  of  them,  or  than  it 
would  be  reasonable  to  suppose  a  business  man  would  expect  to  hold 
them  for  a  profit. 

As  to  the  annual  products  of  the  soil,  which  are  raised  for 
annual  consumption,  they  are  almost  universally  disposed  of  by  the 
producers  within  a  few  months  after  they  are  harvested,  and,  I  may 
say,  invariably  consumed,  or  otherwise  disposed  of  before  the  next 
harvest ;  and,  in  my  judgment,  a  longer  period  than  ought  never  to 
be  allowed  within  which  to  estimate  the  damages  as  to  such  prop- 
erty, at  least  without  some  proof  that  the  property  would  have 
been  retained. 

In  this  case  the  property  was  taken  by  means  of  a  writ  of 
replevin,  and,  as  the  proof  establishes,  was  disposed  of  shortly  after 
it  was  taken.  We  are  not  called  upon  to  inquire  whether  a  different 
measure  of  damages  should  be  adopted  where  the  property  has  been 
retained  and  can  be  returned  in  specie.  The  price  fixed  was  during 
the  year  186-4 — at  what  period  of  the  year  is  not  definitely  settled 
by  the  evidence,  though  most  likely  it  was  after  harvest  of  the  hay 
crop,  as  the  value  was  proven  by  one  of  the  defendants,  who  testifies 
that  he  sold  hay  at  that  price  during  that  year.  At  all  events,  the 
instruction  authorized  the  jury  to  estimate  the  value  after  that 
time ;  and,  as  it  does  not  appear  that  they  did  not  do  so,  the  judg- 
ment should  be  reversed,  and  it  is  so  ordered. 

By  Rhodes,  C.  J.  :  I  concur  in  the  judgment. 

Wallace,  J.,  being  disqualified,  did  not  participate  in  the  decis- 
ion of  this  cause. 


606      CONVERSION.     RULES   OF   HIGHER   INTERMEDIATE   VALUE. 

In  an  Action  for  the  Conversion  of  Stocks  as  well  as  of 
other  Personal  Property,  the  Measure  of  Damages  is  the 
Value  of  the  Property  at  the  Time  of  the  Conversion, 
with  Interest,  to  the  Trial. 


SUPREME   COURT   OF    ILLINOIS. 

[1870.]  Stukges  v.  Keith  (57  111.  451). 

Measure  of  Damages — in  trover,  for  the  conversion  of  railway  stocks.  The  rule  in  this 
State  is  that  the  proper  measure  of  damages  in  an  action  of  trover  is  the  current 
market  value  of  the  property  at  the  time  of  the  conversion,  with  interest  from  that 
time  until  the  trial,  and  no  exception  is  recognized  where  the  property  converted 
happens  to  be  stocks. 

Same — as  to  the  time  of  estimating  value.  Where  the  demand  and  refusal  either  constitute 
the  conversion,  or  afford  presumptive  evidence  of  it,  it  is  do  infringement  of  this 
rule  to  regard  that  as  the  time  for  estimating  the  value. 

Same — of  evidence  admissible  to  fix  value.  In  an  action  of  trover  to  recover  for  the  alleged 
conversion  of  certain  railroad  stock,  it  was  held  to  be  competent  for  the  plaintiff  to 
give  evidence  tending  to  show  that  the  railroad  company  was  about  to  and  did  in- 
crease the  stock,  and  that  owners  of  stock  were,  by  its  regulations,  to  have  a  certain 
pro  rata  of  the  new  stock  at  reduced  rates, — not  to  enable  the  plaintiff  to  recover  the 
value  of  the  new  stock  as  special  damages,  but  as  being  a  circumstance  which  would 
legitimately  bear  upon  the  question  of  the  value  of  the  stock  converted. 

Appeal  from  the-  Circuit  Court  of  Cook  county ;  the  Hon. 
Erastus  S.  Williams,  Judge,  presiding. 

Mr.  Justice  McAllister  delivered  the  opinion  of  the  court  : 

This  was  an  action  of  trover,  brought  in  the  circuit  court  of 
Cook  county,  by  appellee  against  appellants,  to  recover  for  the 
alleged  wrongful  conversion  of  250  shares  of  the  common  stock  of 
the  Chicago  &  Alton  Railroad  Company. 

It  appears  from  the  evidence  that,  in  May,  1864,  the  appellants, 
Frank  Sturges,  Albert  Sturges,  George  Sturges,  Buckingham  Stur- 
ges  and  Shelton  Sturges,  were  engaged  as  copartners  in  the  business 
of  banking,  under  the  firm  name  of  Solomon  Sturges'  Sons ;  that 
the  appellant  William  Sturges,  was  not  a  member  of  the  firm,  but  a 
managing  agent  thereof ;  that  appellee,  being  a  customer  of  this 
banking  house,  and  himself  and  partner  being  indebted  to  the  same 
in  the  sum  of  about  $13,000,  upon  a  gold  transaction,  in  the  month 
of  May  aforesaid,  brought  to  the  bank  certificates  for  250  shares  of 
the  above-mentioned  stock,  and  by  an  arrangement  conducted  exclu- 
sively between  him  and  William  Sturges,  the  stock  was  left  in  the 
bank,  but  whether  as  security  for  the  indebtedness  of  appellee  and 
partner  to  this  banking  house,  or  merely  for  safe  keeping,  is  a  fact 


STURGES   v.   KEITH.  607 

as  to  which  the  evidence  of  the  parties  is  conflicting.  It,  however, 
does  appear,  that  at  the  time  of  leaving  the  stock  and  closing  the  ar- 
rangement in  reference  to  it,  appellee  executed  a  power  of  attorney 
to  the  Sturges  last  named,  authorizing  him  to  sell  and  transfer  the 
stock,  and  there  is  nothing  in  this  record  which  discloses  that  appel- 
lee ever  attempted,  by  any  express  act  of  revocation,  or  by  giving 
instructions  inconsistent  with  such  power  of  attorney,  to  revoke  the 
same,  until  about  the  22d  day  of  March,  1866,  when  he  caused  a  de- 
mand in  writing,  for  the  return  of  the  stock  to  him,  to  be  served 
upon  said  "William,  and  in  July  next  thereafter  commenced  this 
suit  against  all  the  parties  above  named,  for  the  wrongful  conversion 
of  the  stock. 

It  further  appears,  by  the  evidence  in  the  case,  that  in  Septem- 
ber, 1864,  Albert  and  Buckingham  Sturges  bought  out  the  other 
members  of  the  firm,  the  latter  then  retiring  therefrom,  and  the  for- 
mer continuing  the  business.  And  also  that  in  the  latter  part  of 
January,  1865,  William  Sturges  sold  the  stock  in  question ;  but  it 
does  not  appear  that  any  of  the  other  defendants  participated  in  the 
act,  either  by  previous  command  or  subsequent  ratification,  except 
the  mere  fact  that  the  transaction  was  entered  in  the  books  of  the 
firm,  then  composed  of  Albert  and  Buckingham  Sturges  only. 

[The  learned  judge,  after  discussing  questions  relating  to  the 
right  of  action,  proceeded  as  follows :] 

The  only  other  question  discussed  in  this  case,  is  the  measure  of 
damages,  and  the  propriety  of  the  instruction  to  the  jury  by  the 
court  below,  on  that  subject,  the  substance  of  which  was,  that  if  the 
jury  found  the  defendants  guilty,  then,  inasmuch  as  the  plaintiff 
had  elected  to  take  it,  the  measure  of  damages  was  the  market  value 
of  the  stock  at  the  time  of  the  trial,  together  with  the  cash  dividends 
declared  since  February,  1865,  and  the  jury  was  at  liberty  to  allow 
interest  on  such  dividends  at  the  rate  of  six  per  cent,  per  annum 
from  the  time  of  their  respective  payments  by  the  railroad  com- 
pany. 

It  appears  in  the  case  that  the  stock  was  sold  in  January,  1865, 
for  $93  per  share,  which  is  claimed  to  have  been  its  then  market 
value.  The  demand  was  made  for  it  by  appellee  in  March,  1866. 
In  July  next  thereafter,  this  suit  was  commenced  ;  but  it  was  not 
tried  until  the  October  term,  1868,  at  which  time  the  stock  had  ad- 
vanced to  $151  50  per  share.  Under  the  instructions  given,  the  jury 
found  all  the  appellants  guilty,  and  assessed  appellee's  damages  at 
$47,058  06,  and  must  therefore  have  determined  the  value  of  the 
stock  at  the  market  price  at  the  time  of  the  trial. 


608       CONVERSION.     RULES   OF   HIGHER   INTERMEDIATE   VALUE. 

Neither  the  last  mentioned  instruction  nor  any  other,  contained 
any  hypothesis  as  to  whether  the  suit  had  been  brought  within  a 
reasonable  time,  or  prosecuted  with  diligence,  or  whether  from  the 
evidence  the  conduct  of  appellants  was  fraudulent,  or  whether 
from  the  evidence  there  was  good  reason  for  believing  thai  appel- 
lee procured  the  stock  for  a  permanent  investment,  or  would  have 
kept  it  so  as  to  have  realized  the  price  ruling  at  the  time  of  the 
trial.   . 

The  rule  of  damages  adopted  by  the  circuit  court  must,  there- 
fore, have  excluded  all  consideration  of  punitive  or  exemplary  dam- 
ages, and  have  been  based  upon  the  sole  idea  of  indemnity  to  appel- 
lee, and  virtually  declares  that  the  bailor  may  bring  his  suit  at  any 
time  within  the  period  of  the  statute  of  limitations,  and  then,  upon 
the  arbitrary  presumption  of  law,  that  he  originally  obtained  the 
stock  for  a  permanent  investment,  and  would  have  kept  it  until  the 
time  of  the  trial,  he  is  allowed  to  elect  to  take  the  price  at  that  time 
as  the  measure  of  damages,  thus  making  the  measure  of  damages 
depend  upon  presumptions  that  may  be  against  the  fact — the  cir- 
cumstance of  venue,  and  the  strategy  of  movement  as  to  the  time  of 
trial,  instead  of  any  fixed  or  definite  rule. 

In  Suydam  v.  Jenkins  (3  Sandf.  626),  the  court,  in  an  opinion 
delivered  by  Duek,  J.,  and  remarkable  for  its  ability,  research  and 
thoroughness,  says  :  "  In  trover,  the  general  rule,  both  in  England 
and  the  United  States,  undoubtedly  is,  that  the  current  or  market 
value  of  property  at  the  time  conversion,  with  interest  from  that 
time  until  the  trial,  is  the  true  measure  of  damages ; "  citing,  in  sup- 
port of  the  proposition,  a  large  number  of  cases,  to  which  may  be 
added  :  Moody  v.  Whitney  (38  Me.  174) ;  Walker  v.  Borland  (21 
Mo.  289-291) ;  Baltimore  M.  Ins.  Co.  v.  Dalrymple  (25  Md.  272) ; 
Park  v.  Boston  (15  Pick.  198) ;  Greenl.  Ev.  vol.  2,  §  276 ;  Id.  §  649 ; 
Sedg.  on  Dam.  (marg.  p.)  481 ;  Keaggy  v.  Hite  (12  111.  R.  99) ; 
Otter  v.  Williams  (21  Id.  118) ;  Yates  v.  Mullin  (24  Ind.  R.  277). 

There  can  be  no  doubt  but  that  the  rule  adopted  by  the  learned 
circuit  judge  was  based  upon  a  supposed  exception  to  the  general 
rule  of  damages,  on  account  of  the  subject-matter  of  the  action 
being  stocks.  Such  an  exception  to  the  general  rule  of  damages  in 
actions  ex  contractu  was  made  in  England  as  early  as  1802,  in  the 
case  of  Shepherd,  executor,  etc.  v.  Johnson  (2  East,  211).  This  case 
was  a  writ  of  inquiry  to  assess  damages  on  a  bond  given  by  the  de- 
fendant, conditioned  that  his  co-obligor  should  replace  a  certain 
quantity  of  stock  which  the  testator  had  ient  him,  and  which  was  to 
have  been  replaced  on  the  first  of  August,  1799.     By  the  general 


STURGES   v.   KEITH.  609 

rule  of  damages,  the  recovery  would  have  been  for  the  market  value 
at  or  about  the  day  it  should  have  been  delivered.  But  because  it 
was  stock,  an  exception  was  made  to  this  general  rule  ;  and  the  stock 
having  advanced,  the  court  held  the  market  value  at  the  time  of  the 
trial,  was  the  proper  rule  of  damages.  Nothing  short  of  that,  it  was 
thought,  would  afford  complete  indemnity  to  the  plaintiff  for  the 
breach  of  the  engagement,  and  thus  this  exception  to  the  general 
rule  originated  from  a  ground  merely  conjectural  and  speculative, 
viz.  :  that  the  plaintiff  would  have  kept  his  stock  so  as  to  realize  the 
price  at  the  trial.  From  that  time  to  1824,  the  cases  of  Mc  Arthur 
v.  Seaforth  (2  Taunt.  258);  Downs  v.  Back  (L  Stark.  R.  318),  and 
Harrison  v.  Harrison  (1  Car.  &  P.  411),  were  decided,  recognizing 
the  same  exception.  In  Gainsford  v.  Carroll,  it  was  sought  to  apply 
the  rule  of  the  foregoing  cases  in  an  action  of  assumpsit  for  not  de- 
livering goods  upon  a  particular  day,  but  which  had  not  been  paid 
for ;  but  the  court  said,  "  Those  cases  do  not  apply  to  the  present. 
In  the  case  of  a  loan  of  stock,  the  borrower  holds  in  his  hands  the 
money  of  the  lender,  and  thereby  prevents  him  from  using  it  alto- 
gether." 

But  in  Greening  v.  Wilkinson  (1  Car.  &  P.  623,  tried  in  1825), 
which  was  trover  for  East  India  Co.'s  warrants  for  cotton,  evidence 
was  given  that  the  cotton  was  worth  sixpence  per  pound  on  the  day 
of  the  refusal  to  deliver  it  up,  but  at  the  time  of  the  trial  would  be 
worth  ten  pence  half-penny. 

For  the  defendant  it  was  contended  that,  on  the  authority  of  the 
case  of  Mercer  v.  Jones  (3  Camp.  477),  the  damages  should  be  the 
value  at  the  time  of  the  conversion  ;  but  for  the  plaintiff,  that  it 
must  be  the  price  at  the  time  of  the  verdict,  in  the  same  way  as 
damages  for  the  non-performance  of  an  agreement  to  replace  stock. 

Abbott,  Ch.  J.,  said  the  case  of  Mercer  v.  Jones  was  hardly  law, 
and  that  the  amount  of  damages,  is  for  the  jury,  who  may  give  the 
value  at  the  time  of  the  conversion,  or  at  any  subsequent  time,  in 
their  discretion,  because  the  plaintiff  might  have  had  a  good  oppor- 
tunity of  selling  the  goods  if  they  had  not  been  detained. 

Mercer  v.  Jones  (supra),  was  trover  for  a  bill  of  exchange,  and 
Lord  Ellexbokough  said  :  "  In  trover,  the  rule  is  that  the  plaintiff 
is  entitled  to  damages  equal  to  the  value  of  the  article  converted, 
at  the  time  of  the  conversion,"  and  directed  a  verdict  for  the  amount 
of  the  bill  and  the  interest  up  to  the  time  of  the  conversion.  Al- 
though Abbott,  Ch.  J.,  declared  that  this  case  was  hardly  law,  yet, 
in  Keaggy  v.  Hite  (supra),  which  was  trover  for  a  note  and  mort- 
gage, this  court,  in  announcing  the  rule  of  damages,  said :  "  The 
39 


'610      CONVERSION.     RULES   OF  HIGHER  INTERMEDIATE  VALUE. 

plaintiff,  if  entitled  to  recover  at  all,  is  entitled  to  a  verdict  for  the 
full  amount  due  upon  tlie  note  and  mortgage  at  the  time  of  the  con- 
version," and  this  rule,  which  was  precisely  the  same  as  that  laid 
down  by  Lord  Ellenborough  in  Mercer  v.  Jones  (supra),  was  again 
approved  by  this  court  in  Otter  v.  Williams  (supra). 

It  is  true,  that  in  the  former  case,  Mr.  Justice  Trembull,  who 
delivered  the  opinion  of  the  court,  cited  the  case  of  Cortelyou  v. 
Lansing  (2  Caine's  Cases  in  Error),  in  support  of  the  rule.  It  is  dif- 
ficult to  understand  why  that  case  was  cited  for  that  purpose.  That 
was  an  action  of  assumpsit,  to  recover  the  value  of  a  depreciation 
note,  which  had  been  left  with  the  defendant  as  a  pledge  for  the  se- 
curity of  a  debt,  but  which  had  been  wrongfully  sold  by  the  pledgee 
more  than  ten  years  before  the  demand  and  refusal.  The  court  held 
that  the  demand  and  refusal  did  not  show  a  cause  of  action,  because 
the  plaintiff  did  not  show  that  at  the  time  of  the  demand,  he  was 
ready  and  willing  to  tender  the  amount  of  the  debt ;  and  citing  the 
case  of  Shepherd  v.  Johnson  (2  East),  approvingly,  further  held 
that,  although  the  demand  and  refusal  did  not  constitute  or  afford 
evidence  of  the  cause  of  action,  but  that  the  sale  of  the  note  ten 
years  before,  did,  yet  the  plaintiff  was  entitled  to  recover  the  value 
of  the  note  at  the  time  he  chose  to  demand  it.  Though  this  case 
was  decided  twenty  years  before  that  of  Greening  v.  "Wilkinson  (1 
Car.  &  P.  supra),  the  rule  of  damages  is  the  same  as  in  the  latter, 
and  the  latter  repudiated  that  of  Mercer  v.  Jones,  which  is  the  same 
this  court  adopted  in  Keaggy  v.  Llite  (supra). 

It  is  very  manifest  that  this  court,  in  the  citation  of  Cortelyou  v. 
Lansing,  did  not  intend  to  adopt  the  rule  of  damages  therein  recog- 
nized.* Because  the  case  in  which  it  was  cited  was  decided  at  the 
Mount  Vernon  term  of  December,  1850,  and  at  the  Springfield 
term  in  the  same  month,  the  case  of  Smith  et  al.  v.  Dunlap  (12  111. 
184),  was  decided  ;  and  in  the  well-considered  opinion  of  the  court, 
delivered  by  Chief  Justice  Treat,  the  doctrine  of  Shepherd,  exec- 
utor, v.  Johnson  (2  East),  of  McArthur  v.  Seaforth  (2  Taunt.) ; 
Downs  v.  Back  (1  Stark.),  and  Harrison  v.  Harrison  (1  Car.  &  P. 

*  Note  by  the  reporter :  On  the  argument  of  the  case  of  Barrow  v.  Paxton,  5  Johns. 
R.  260,  the  counsel  for  the  defendant  in  error  cited  the  case  of  Cortelyou  v.  Lansing, 
when  he  was  interrupted  by  Mr.  Chief  Justice  Kent,  who  remarked :  "  That  case  was 
never  decided  by  this  court.  It  was  argued  once,  and  I  had  prepared  the  written  opinion, 
which  appears  in  the  report  of  Mr.  Caines ;  but  the  court  directed  a  second  argument, 
which,  for  some  reason  or  other,  was  never  brought  on,  so  that  no  decision  took  place  on 
the  points  raised  in  the  cause.  How  my  opinion  got  into  print,  I  do  not  know.  It  was 
probably  lent  to  some  of  the  bar,  and  a  copy  taken,  which  the  reporter  has  erroneously 
published  as  the  opinion  of  this  court." 


STURGES   v.   KEITH.  611 

supra),  recognizing  this  supposed  exception  to  the  general  rule  of 
damages,  when  the  subject  matter  of  the  action  was  stock,  or  the 
delivery  of  goods,  the  price  of  which  had  been  prepaid,  is  expressly 
repudiated,  and  which  doctrine,  we  believe,  still  remains  under  the 
repudiation  of  a  very  strong,  if  not  prevailing  current  of  American 
authorities  (Pinkerton  v.  Manchester  cfc  Lawrence  R.  R.  (42  Xew 
I  lamp.  R.  -±-4),  and  cases  there  cited  ;  Sleuter  et  al.  v.  Wallbaum 
(45  111.  43). 

A  majority  of  the  court  are  unwilling  to  give  our  adherence  to 
this  doctrine  of  exception  to  the  general  rule  of  damages  because 
the  subject  matter  of  the  action  happens  to  be  stock ;  because,  if 
there  were  a  just  foundation  for  the  distinction,  in  the  clays  of  Mr. 
Justice  Grose,  and  when  Shepherd  v.  Johnson  was  decided,  the 
changes  of  time  and  commerce  have  long  since  worn  it  away.  It  is 
a  fact,  and  one  to  which  we  can  not  shut  our  eyes,  that  within  the 
last  cpiarter  of  a  century  almost  numberless  private  corporations 
have  been  brought  into  existence,  whose  stocks,  real  or  fictitious, 
have  inundated  the  country,  and  supplied  both  the  means  and  the 
stimulus  for  the  most  active,  reckless  and  corrupting  speculations 
and  practices  of  the  age.  These  are  encouraged  by  the  fact  that  now 
and  then,  though  the  value  of  the  franchise  itself  is  the  only  capital, 
though  it  may  be  based  upon  lands,  oil  wells,  mines,  patent  rights  or 
railroad  schemes,  yet,  by  the  development  of  the  country,  or  some 
fortuitous  circumstance,  persons  occasionally  realize  great  fortunes 
in  these  operations.  Stocks,  that  cost  the  owner  little  or  nothing, 
now  and  then  advance  to  par,  and  above.  Suppose  the  owner  of 
such  stocks  should  pledge  them  when  not  worth  ten  cents  on  the 
dollar,  and  the  pledgee  convert  them.  They  cost  the  owner  little  or 
nothing.  Circumstances  arise,  however,  which  enhance  their  value. 
By  delaying  his  suit,  or  the  trial  of  it,  until  those  circumstances  have 
had  their  full  effect,  the  plaintiff,  by  invoking  the  aid  of  the  pre- 
sumptions: 1st.  That  he  had  parted  with  his  money  for  the  stock ; 
2d.  That  he  obtained  the  stock  as  a  permanent  investment  :  and, 
3d.  That  it  is  to  be  presumed  that  he  would  have  kept  it  until  the 
time  of  the  trial,  can  elect  to  take  the  market  value  at  the  time  of 
trial,  when  each  of  these  presumptions  is  as  baseless  as  the  fabric  of 
a  dream.  Such  a  rule,  instead  of  being  general,  fixed  and  certain,  is 
merely  speculative,  conjectural,  and  dependent  upon  accidental  cir- 
cumstances. 

In  Smith  et  al.  v.  Dunlap  (supra),  this  court  said  that.  "  legal 
rules  ought  to  be  general  in  their  application,  so  far  as  to  embrace 
all  cases  depending  on  the  same  principles."     Believing  that  to  be  a 


612      CONVERSION.     RULES   OF   HIGHER   INTERMEDIATE    VALUE. 

sound  maxim,  a  majority  of  the  court  adhere  to  the  general,  well 
■established  rule  in  this  State,  viz. :  that  the  proper  measure  of  dam- 
ages in  an  action  of  trover,  is  the  current  market  value  of  the  prop- 
erty at  the  time  of  the  conversion,  with  interest  from  that  time  un- 
til the  trial,  and  recognize  no  exception  where  the  property  con- 
verted happens  to  be  stocks. 

Where  the  demand  and  refusal  either  constitute  the  conversion 
or  afford  presumptive  evidence  of  it,  it  is  no  infringement  of  this 
rule  to  regard  that  as  the  time  for  estimating  the  value  ;  and  when 
the  article  converted  is  one  which  has  no  real  market  value,  but  its 
value  is  enhanced  to  the  owner  by  personal  or  family  considerations, 
then,  from  the  necessity  of  the  case,  the  rule  of  damages  would  be 
-measurably  within  the  discretion  of  the  jury. 

We  think  the  evidence  offered  by  the  plaintiff,  and  excluded  by 
the  court,  tending  to  show  that  the  railroad  company  was  about  to, 
and  did,  increase  the  stock,  and  that  owners  of  stock  were,  by  its 
regulations,  to  have  a  certain  pro  rata  of  the  new  stock  at  reduced 
rates,  was  admissible — not  to  enable  the  plaintiff  to  recover  the  value 
-of  the  new  stock,  as  special  damages,  but  as  being  a  circumstance 
which  would  legitimately  bear  upon  the  question  of  the  value  of  the 
stock  converted.  As  in  trover  for  a  ship,  the  plaintiff  sought  to 
prove,  as  special  damages,  the  freight  she  would  have  earned  on  the 
next  voyage,  but  it  was  held  by  the  court  that  such  circumstance 
must  be  included  in  the  value  of  the  ship  itself  (Mayne  on  Dam.  213). 

If  the  plaintiff  had  conceived  that  there  was  fraudulent  miscon- 
duct on  the  part  of  the  defendants,  which  called  for  exemplary  dam- 
ages, or  if  he  could  lay  the  foundation  for  special  damages,  the  way 
was  open  to  him  to.  join  special  counts  in  case,  when  such  miscon- 
duct would  have  been  directly  in  issue.  But  we  cannot,  from  any 
considerations  of  supposed  hardship  of  the  case,  extend  the  ac- 
tion of  trover  beyond  its  legitimate  scope,  "  for  trover,  though 
nominally  an  action  of  tort,  is  usually  brought  to  establish  a  mere 
right  of  property,  and  does  not,  like  trespass,  admit  of  evidence  of 
aggravation  "  (Sedg.  on  Dam.  §467). 

For  the  errors  indicated,  the  judgment  of  the  court  below  must 
be  reversed  and  the  cause  remanded. 

Judgment  reversed. 


BAKER   v.    DRAKE.  613 


Rule  of  Damages  in  Action  for  Conversion. 


COURT    OF    APPEALS,    NEW   YORK. 

[1873.]  Baker  v.  Drake,  et  at  (53  IS".  Y.  211). 

In  civil  actions  the  law  awards  to  the  party  injured  a  just  indemnity  for  the  wrong 
which  has  been  done  him,  and  no  more,  whether  the  action  be  in  contract  or  tort, 
and  except  in  those  special  cases  where  punitory  damages  are  allowed,  the  inquiry 
must  always  be,  what  is  an  adequate  indemnity  to  the  party  injured,  and  the  answer 
to  that  inquiry  cannot  be  affected  by  the  form  of  the  action  in  which  he  seeks  his 
remedy. 

The  rule  for  the  measure  of  damages  in  cases  of  unauthorized  sale  of  stock,  adopted  in 
Markham  v.  Jaudon  (41  N.  Y.  235),  giving  the  plaintiff  "  the  difference  between  the 
amount  for  which  the  stock  wTas  sold  by  the  defendants,  and  the  highest  market 
value  which  it  reached  at  any  time  after  such  sale  down  to  the  day  of  trial,"  allows 
more  than  a  just  indemnity,  and  cannot  be  upheld. 

Where  stock  purchased  upon  speculation  is  s  )ld  by  a  broker  without  orders,  the  princi- 
pal may  disaffirm  the  sale  and  require  the  broker  to  replace  the  stock,  and  upon  the 
broker's  failure  to  do  so,  may  replace  the  stock  himself,  and  the  expense  of  so 
replacing  it  within  a  reasonable  time  is  the  proper  measure  of  damages. 

This  was  an  appeal  from  a  judgment  of  the  general  term  of  the 
Supreme  Court  in  the  first  judicial  department,  affirming  a  judg- 
ment on  a  verdict  for  the  plaintiff.  The  action  was  brought  for  the 
unauthorized  sale  by  the  defendants,  who  were  stockbrokers,  of  500 
shares  of  stock  of  the  Chicago  &  Alton  Railroad  Company. 

The  material  facts  are  stated  in  the  opinion. 

Rapallo,  J. — The  most  important  question  in  this  case  is  that 
which  relates  to  the  rule  of  damages.  The  judge  at  the  trial, 
following  the  case  of  Markham  v.  Jaudon  (41  !N\  Y.  235),  instructed 
the  jury  that  the  plaintiff,  if  entitled  to  recover,  was  entitled  to  the 
difference  between  the  amount  for  which  the  stock  was  sold  by  the 
defendants  and  the  highest  market  value  which  it  reached  at  any 
time  after  such  sale  down  to  the  day  of  trial. 

This  rule  of  damages  has  been  recognized  and  adopted  in  several 
late  adjudications  in  this  State  in  actions  for  the  conversion  of 
property  of  fluctuating  value  ;  but  its  soundness,  as  a  general  rule, 
applicable  to  all  cases  of  conversion  of  such  property,  has  been 
seriously  questioned,  and  is  denied  in  various  adjudications  in  this 
and  other  States. 

This  court  has,  in  several  instances,  intimated  a  willingness  to  re- 


614      CONVERSION.     RULES   OF   HIGHER   INTERMEDIATE   VALUE. 

examine  the  subject,  and  in  Mathews  v.  Goe  (49  N.  Y.  57),  per 
Church,  Ch.  J.,  stated  very  distinctly  that  an  unqualified  rule, 
giving  a  plaintiff  in  all  cases  of  conversion  the  benefit  of  the 
highest  price  to  the  time  of  trial,  could  not  be  upheld  upon  any 
sound  principle  of  reason  or  justice,  and  that  we  did  not  regard 
the  rule  referred  to  so  firmly  settled  by  authority  as  to  be  beyond 
the  reach  of  review,  whenever  an  occasion  should  render  it  nec- 
essary. 

"Whether  the  present  action  is  one  for  the  conversion  of  property 
of  the  plaintiff,  or  for  the  breach  of  a  special  contract,  presents  a 
serious  question,  but  that  inquiry  is  perhaps  unimportant  on  the 
question  of  damages  and  will  be  deferred  for  the  present,  and  the 
case  treated  as  if  it  were  one  of  conversion. 

Regarding  it  in  that  light,  the  question  is  whether  or  not,  under 
the  circumstances  of  the  case,  the  rule  adopted  by  the  court  below 
affords  the  plaintiff  more  than  a  just  indemnity  for  the  loss  he  sus- 
tained by  the  sale  of  the  stock.  It  is  not  pretended  that  the  defend- 
ants realized  any  profit  by  the  transaction,  and  therefore  the  inquiry 
is  confined  to  the  loss  sustained  by  the  plaintiff. 

It  does  not  appear  that  there  was  any  express  contract  made 
between  the  parties,  defining  the  terms  upon  which  the  defendants 
were  to  purchase  or  carry  stocks  for  the  plaintiff.  All  that  appears 
upon  that  subject  in  the  evidence  is,  that  the  plaintiff,  through  his 
friend  Rogers,  deposited  various  sums  of  money  with  the  defendants, 
and  from  time  to  time  directed  them  to  purchase  for  his  account 
shares  of  stock  to  an  amount  of  cost  from  ten  to  twenty  times 
greater  than  the  sums  deposited  ;  which  they  did.  No  agreement  as 
to  margin  or  as  to  the  carrying  of  the  stock  by  the  defendants  is 
shown  by  the  evidence,  but  the  plaintiff  alleges  in  his  complaint 
that  the  agreement  was  that  he  should  deposit  with  the  defendants 
such  collateral  security  or  margin  as  they  should  from  time  to  time 
require ;  and  that  they  would  purchase  the  stock  and  hold  and  carry 
the  same,  subject  to  the  plaintiff's  direction  as  to  the  sale  and  disposi- 
tion thereof,  as  long  as  the  plaintiff  should  desire,  and  would  not  sell 
or  dispose  of  the  same  unless  plaintiff's  margin  should  be  exhausted  or 
insufficient,  and  not  then,  unless  they  should  demand  of  the  plaintiff 
increased  security,  or  require  him  to  take  and  pay  for  the  stocks,  and 
give  him  due  notice  of  the  time  and  place  of  sale,  and  due  oppor- 
tunity to  make  good  his  margin. 

The  answer  denies  only  the  agreement  to  give  notice  of  the  time 
and  place  of  sale,  admitting  by  implication  that  in  other  respects  the 
agreement  is  correctly  set  forth. 


BAKER   t.   DRAKE.  615 

This  is  all  that  appears  upon  the  record  in  reference  to  the  con- 
tract under  which  the  stocks  were  purchased. 

The  transactions  under  this  contract  appear  in  detail  by  a  final 
account  rendered  by  the  defendants  to  the  plaintiff,  after  the  stock 
had  been  sold.  This  account  was  upon  the  trial  admitted  to  be 
correct,  the  plaintiff  reserving  the  right  ouly  to  dispute  certain 
charges  of  interest,  which,  however,  if  successfully  assailed,  would 
not  vary  the  result  to  an  extent  sufficient  to  affect  the  reasoning 
based  upon  it. 

From  this  account  it  appears  that  the  plaintiff  had,  during  the 
whole  course  of  his  transactions  with  the  defendants,  advanced  in  the 
aggregate  $4,240  toward  the  purchase  of  shares,  which,  at  the  time 
of  the  alleged  wrongful  sale,  November  14,  1868,  had  cost  the 
defendants  upward  of  $66,300  over  and  above  all  the  sums  so  ad- 
vanced by  the  plaintiff. 

By  the  stock  lists  in  evidence  it  appears  that  these  shares  were 
then  of  the  market  value  of  less  than  $67,000,  and  the  surplus  aris- 
ing from  the  sale,  after  paying  the  amount  due  the  defendants, 
amounted  to  only  $558,  which  sum  represents  the  value  at  that  time 
of  the  plaintiff's  interest  in  the  property  sold. 

It  so  happened,  however,  that  within  a  few  days  after  the  sale  the 
market  price  of  the  stock  rose,  and  that  at  the  time  of  the  commence- 
ment of  this  action,  November  24,  1868,  the  shares  would  have 
brought  some  $5,500  more  than  the  sum  for  which  they  had  been 
sold.  But  after  the  commencement  of  the  action,  and  before  the 
trial,  the  stock  underwent  alternate  elevation  and  depression,  and 
reached  its  maximum  point  in  August,  1869,  at  which  time  one  sale, 
of  thirty  shares  at  170  per  cent.,  was  proved.  It  afterward  declined, 
and  on  the  day  preceding  the  trial,  October  20,  1869,  the  price  was 
143,  having,  for  a  month  previous  to  the  trial,  ranged  between  137 
and  145. 

The  jury,  in  obedience  to  the  rule  laid  down  by  the  court,  found 
a  verdict  for  the  plaintiff  for  $18,000,  being  just  the  difference 
between  134,  which  was  the  average  price  at  which  the  defendants 
sold,  and  170,  the  highest  price  touched  before  the  trial  ;  thirty-six 
per  cent,  on  500  shares.  More  than  two-thirds  of  this  supposed 
damage,  arose  after  the  bringing  of  the  suit. 

This  enormous  amount  of  profit,  given  under  the  name  of  dam- 
ages, could  not  have  been  arrived  at  except  upon  the  unreasonable 
supposition,  unsupported  by  any  evidence,  that  the  plaintiff  would 
not  only  have  supplied  the  necessary  margin  and  caused  the  stock  to 
be  carried  through  all  its  fluctuations  until  it  reached  its  highest 


61G      CONVERSION.     RULES   OF   HIGHER   INTERMEDIATE  VALUE. 

point,  but  that  he  would  have  been  so  fortunate  as  to  sieze  upon  that 
precise  moment  to  sell,  thus  avoiding  the  subsequent  decline,  and 
realizing  the  highest  profit  which  could  have  possibly  been  derived 
from  the  transaction  by  one  endowed  with  the  supernatural  power  of 
prescience. 

In  a  case  where  the  loss  of  probable  profits  is  claimed  as  an 
element  of  damage,  if  it  be  ever  allowable  to  mulct  a  defendant  for 
such  a  conjectural  loss,  its  amount  is  a  question  of  fact,  and  a  finding 
in  respect  to  it  should  be  based  upon  some  evidence.  In  respect  to  a 
dealing  which,  at  the  time  of  its  termination,  was  as  likely  to  result 
in  further  loss  as  in  profit,  to  lay  down  as  an  inflexible  rule  of  law 
that  as  damages  for  its  wrongful  interruption  the  largest  amount  of 
profit  which  subsequent  developments  disclose  might,  under  the  most 
favorable  circumstances,  have  been  possibly  obtained  from  it,  must  be 
awarded  to  the  fortunate  individual  who  occupies  the  position  of 
plaintiff,  without  regard  to  the  probabilities  of  his  realizing  such 
profits,  seems  to  me  a  wide  departure  from  the  elementary  principles 
upon  which  damages  have  hitherto  been  awarded. 

An  amount  sufficient  to  indemnify  the  party  injured  for  the  loss, 
which  is  the  natural,  reasonable  and  proximate  result  of  the  wrongful 
act  complained  of,  and  which  a  proper  degree  of  prudence  on  the 
part  of  the  complainant  would  not  have  averted,  is  the  measure  of 
damages  which  juries  are  usually  instructed  to  award,  except  in  cases 
where  punitive  damages  are  allowable.  Before  referring  to  the  au- 
thorities which  are  supposed  to  govern  the  question,  I  will  briefly  sug- 
gest what  would  be  a  proper  indemnity  to  the  injured  party  in  a  case 
like  the  present,  and  how  greatly  the  rule  under  consideration 
exceeds  that  just  limit. 

The  plaintiff  did  not  hold  the  stocks  as  an  investment,  but  the 
object  of  the  transaction  was  to  have  the  chance  of  realizing  a  profit 
by  their  sale.  He  had  not  paid  for  them.  The  defendants  had  sup- 
plied all  the  capital  embarked  in  the  speculation,  except  the  compara- 
tively trifling  sum  which  remained  in  their  hands  as  margin.  As- 
suming that  the  sale  was  in  violation  of  the  rights  of  the  plaintiff, 
what  was  the  extent  of  the  injury  inflicted  upon  him  ?  He  was 
deprived  of  the  chance  of  a  subsequent  rise  in  price.  But  this  was 
accompanied  with  the  corresponding  chance  of  a  decline,  or,  in  case 
of  a  rise,  of  his  not  availing  himself  of  it  at  the  proper  moment  ;  a 
continuance  of  the  speculation  also  required  him  to  supply  further 
margin,  and  involved  a  risk  of  ultimate  loss. 

If,  upon  being  informed  of  the  sale,  he  desired  further  to  prose- 
cute the  adventure  and  take  the  chances  of  a  future  market,  he  had 


BAKER  v.   DRAKE.  617 

the  right  to  disaffirm  the  sale  and  require  the  defendants  to  replace 
the  stock.  If  they  failed  or  refused  to  do  this,  his  remedy  was  to  do 
it  himself  and  charge  them  with  the  loss  reasonably  sustained  in 
doing  so.  The  advance  in  the  market  price  of  the  stock  from  the 
time  of  the  sale  up  to  a  reasonable  time  to  replace  it,  after  the  plaint- 
iff received  notice  of  the  sale,  would  afford  a  complete  indemnity. 
Suppose  the  stock,  instead  of  advancing,  had  declined  after  the  sale, 
and  the  plaintiff  had  replaced  it,  or  had  full  opportunity  to  replace  it, 
at  a  lower  price,  could  it  be  said  that  he  sustained  any  damage  by  the 
sale  ;  would  there  be  any  justice  or  reason  in  permitting  him  to  lie 
by  and  charge  his  broker  with  the  result  of  a  rise  at  some  remote 
subsequent  period  ?  If  the  stocks  had  been  paid  for  and  owned  by 
the  plaintiff',  different  considerations  would  arise,  but  it  must  be 
borne  in  mind  that  we  are  treating  of  a  speculation  carried  on  with 
the  capital  of  the  broker,  and  not  of  the  customer.  If  the  broker 
has  violated  his  contract,  or  disposed  of  the  stock  without  authority, 
the  customer  is  entitled  to  recover  such  damages  as  would  naturally 
be  sustained  in  restoring  himself  to  the  position  of  which  he  has 
been  deprived.  He  certainly  has  no  right  to  be  placed  in  a  better 
position  than  he  would  be  in  if  the  wrong  had  not  been  done. 

But  the  rule  adopted  in  Markham  v.  Jaudon,  passing  far  beyond 
the  scope  of  a  reasonable  indemnity  to  the  customer  whose  stocks 
have  been  improperly  sold,  places  him  in  a  position  incomparably 
superior  to  that  of  which  he  was  deprived.  It  leaves  him,  with  his 
venture  out,  for  an  indefinite  period,  limited  only  by  what  may  be 
deemed  a  reasonable  time  to  bring  a  suit  and  conduct  it  to  its  end. 
The  more  crowded  the  calendar,  and  the  more  new  trials  granted  in 
the  action,  the  better  for  him.  He  is  freed  from  the  trouble  of  keep- 
ing his  margins  good  and  relieved  of  all  apprehension  of  being  sold 
out  for  want  of  margin.  If  the  stock  should  fall  or  become  worth- 
less he  can  incur  no  loss,  but,  if  at  any  period  during  the  months  or 
years  occupied  in  the  litigation,  the  market  price  of  the  stock 
happens  to  shoot  up,  though  it  be  but  for  a  moment,  he  can,  at  the 
trial,  take  a  retrospect  and  sieze  upon  that  happy  instant  as  the 
opportunity  for  profit  of  which  he  was  deprived  by  his  transgressing 
broker,  and  compel  him  to  replace  with  solid  funds  this  imaginary 
loss. 

Xo  reasons  are  given,  in  the  prevailing  opinion  in  Markham  v. 
Jaudon,  in  support  of  the  rule  of  damages  there  laid  down.  All 
that  is  said  upon  the  subject  is,  that  the  action  is  for  the  conversion 
of  the  stock,  and  that  the  rule  of  damages  was  correctly  laid  down 
bv  the  court  at  the  trial.     And  the  cases  of  Ivomaine  v.  Van  Allen 


618      CONVERSION.     RULES   OF   HIGHER   INTERMEDIATE   VALUE. 

(26  N.  Y.  309)  ;  Scott  v.  Kogers  (31  id.  676),  and  Burt  v.  Dutcher 
(31  id.  103),  are  cited  as  establishing  that  proposition.  It  will  be 
well  to  refer  for  a  moment  to  those  cases,  which  are  the  only  ones 
referred  to  by  the  court  in  Markham  v.  Jauclon,  on  the  question  of 
damages. 

Romaine  v.  Van  Allen  was  an  action  for  the  wrongful  conversion, 
by  a  bank,  of  shares  of  stock  actually  owned  by  the  plaintiff  and 
deposited  by  him  with  the  bank  as  security  for  a  loan  of  money  for 
which  the  plaintiff  had  given  his  personal  obligation,  with  authority 
to  sell  the  shares  only  in  case  the  plaintiff  should,  on  demand,  fail  to 
repay  the  loan.  It  did  not  appear  that  the  shares  were  held  for  spec- 
ulative purposes,  but  it  was  justly  inferable,  from  the  circumstances, 
that  they  were  held  for  investment,  and  would  have  been  retained  by 
the  plaintiff  but  for  the  wrongful  sale.  The  bank  sold  the  shares 
without  any  notice  or  demand '  of  payment.  On  being  informed  of 
the  sale,  the  plaintiff  promptly  refused  to  ratify  it,  and  required  the 
bank  to  replace  the  shares.  Pending  negotiations  with  that  view  the 
bank  failed,  and  the  defendant  was  appointed  receiver.  The  plaintiff 
presented  Ins  claim  to  the  receiver,  demanding  the  highest  price 
which  the  stock  had  reached  up  to  the  time  of  the  claim,  and  giving 
notice  that,  if  compelled  to  resort  to  an  action,  he  should  claim  the 
highest  price  down  to  the  time  of  trial.  The  trial  was  had  before  a 
referee,  and  consumed  from  October  25,  1861,  to  July  25,  1862,  a 
period  of  nine  months.  The  stock  reached  its  highest  point  on  the 
30th  of  June,  1862,  and  the  price  on  that  day  was  adopted  in  measur- 
ing the  damages. 

Remarks  upon  this  case  will  be  deferred  until  the  others  have 
been  stated. 

The  next  case  cited  is  the  later  one  of  Scott  v.  Rogers  (31  N".  Y. 
676),  in  which  a  different  rule  was  sanctioned.  In  that  case  a  sale  of 
wheat  by  an  agent  was  held  to  have  been  in  violation  of  the  instruc- 
tions of  his  principal,  and  the  agent  was  determined  to  be  liable  as 
for  a  conversion  of  the  wheat.  The  action  was  not  brought  until 
more  than  four  years  after  the  alleged  conversion,  during  which 
period  there  had  been  great  fluctuations  in  the  market  price  of  the 
article.  That  case  was  twice  argued,  the  court  on  the  first  argument 
being  equally  divided.  The  rule  of  damages  finally  adopted  was  that 
the  plaintiff  should  be  allowed  the  highest  market  price  which  the 
property  reached  between  the  time  of  the  conversion  and  a  reason- 
able time  thereafter  to  commence  the  action,  and  under  the  special 
circumstances  of  that  case,  a  finding  that  a  period  of  about  four 
months  wras  such  reasonable  time  was  sustained.     This  rale  neces- 


BAKER   v.   DRAKE.  619 

sarily  limits  the  range  of  prices  to  a  period  prior  to  the  commence- 
ment of  the  action,  if  brought  within  a  reasonable  time,  and,  if 
unreasonably  delayed,  then  to  the  period  within  which  it  should  have 
been  brought,  and,  in  either  case,  excludes  prices  prevailing  after  the 
commencement  of  the  action.  But  it  may  be  justly  said  that  the 
question  whether  the  prices  prevailing  after  the  commencement  of 
the  action  could  be  considered  was  not  directly  involved  in  the  judg- 
ment in  Scott  v.  Rogers,  as  the  judgment  of  the  court  below  in  that 
case  limited  the  inquiry  to  a  reasonable  time  within  which  to  com- 
mence the  action,  and  this  court  merely  affirmed  that  judgment, 
which  it  might  have  done  even  had  it  thought  the  rule  too  favorable 
to  the  defendant,  who  was  the  only  appellant. 

Though  the  rule  sanctioned  in  Scott  v.  Rogers  materially  differs 
from  that  adopted  in  Romaine  v.  Van  Allen,  the  case  of  later  date 
cannot  be  regarded  as  overruling  the  earlier. 

Burt  v.  Dutcher  (31  X.  Y.  493),  was  an  action  for  tortiously 
taking  and  converting  hops  belonging  to  the  plaintiff,  and  the 
measure  of  damages  was  held  to  be  the  highest  market  price  of  the 
hops  between  the  time  of  the  taking  and  that  of  the  trial.  The 
amount  dependent  upon  the  rule  of  damages  was  very  insignificant ; 
the  question  was  not  discussed,  but  treated  as  definitely  determined  by 
the  cases  of  Romaine  v.  Tan  Allen  and  Scott  v.  Rogers.  This  case 
adds  no  force  to  those  decisions,  but  is  independent  upon  them. 
Scott  v.  Rogers,  as  has  been  shown,  is  not  an  authority  in  favor  of  the 
rale  under  consideration.  Romaine  v.  Van  Allen  is  the  only  one 
referred  to  in  Markham  v.  Jaudon  which  gives  substantial  support  to 
the  conclusion  there  reached.  The  authorities  upon  which  the  decision 
in  Romaine  v.  Yan  Allen  was  based,  should,  therefore,  be  examined. 
The  first  case  referred  to  is  Cortelyou  v.  Lansing  (2  Caine's  Cases  in 
Error,  200).  That  was  an  action  of  assumpsit  for  the  value  of  a 
certificate  of  public  debt  of  the  nominal  value  of  82,600,  which  had 
been  pledged,  under  a  written  contract  to  restore  it  on  repayment  of 
a  loan  of  $600  and  interest,  and  had  been  unlawfully  sold  by  the 
pledgor  without  demand  or  notice.  The  rule  of  damages  adopted 
was  the  value  of  the  certificate  at  the  time  at  which  the  plaintiff 
demanded  its  restoration. 

It  may  be  as  well  to  remark  here  as  anywhere,  that  the  rule  of 
damages  should  not  depend  upon  the  form  of  the  action.  In  civil 
actions  the  law  awards  to  the  party  injured  a  just  indemnity  I'm-  the 
wrong  which  has  been  done  him,  and  no  more,  whether  the  action  be 
in  contract  or  tort;  except  in  those  special  cas,'<  where  punitory 
damages  are  allowed,  the  inquiry  must  always  be.  what  is  an  adequate 


620      CONVERSION.     RULES   OF   HIGHER   INTERMEDIATE   VALUE. 

indemnity  to  the  party  injured,  and  the  answer  to  that  inquiry  cannot 
be  affected  by  the  form  of  the  action  in  which  he  seeks  his  remedy. 
Chancellor  Kent,  in  delivering  the  opinion  of  the  Court  of  Errors 
(Cortelyou  v.  Lansing),  though  the  action  was  in  assumpsit,  seeks  the 
rule  of  damages  in  the  principle  application  to  an  action  for  conver- 
sion. He  says  :  "  The  value  of  the  chattel,  at  the  time  of  its 
conversion,  is  not  in  all  cases  the  rule  of  damages  in  trover.  If  the 
thing  be  of  a  determinate  and  fixed  value,  it  may  be  the  rule,  but 
when  there  is  an  uncertainty  or  fluctuation  attending  the  value,  and 
the  chattel  afterward  rises  in  value,  the  plaintiff  can  only  be  indem- 
nified by  giving  him  the  price  of  it  at  the  time  he  calls  upon  the 
defendant  to  restore  it ;  and  one  of  the  cases  even  carries  the  value 
down  to  the  trial."  The  case  which  Chancellor  Kent  here  refers  to 
is  that  of  Shepherd  v.  Johnson  (2  East,  211),  and  it  is  principally 
from  a  misapplication,  if  not  misapprehension,  in  later  opinions,  of 
what  was  decided  in  that  case,  and  in  those  of  McArthur  v.  Seaforth 
(2  Taunt.  257),  and  Harrison  v.  Harrison  (L  Carr.  &  P.  412),  which 
followed  it,  that  the  doctrine  of  allowing  the  highest  price  at  any 
time  down  to  the  day  of  trial  has  arisen. 

Those  three  cases  were  all  actions  of  debt  on  bonds  conditioned 
for  the  return  of  government  stocks  loaned.  It  was  assumed  that 
the  lender  had  them  for  investment.  The  rate  of  damages  allowed  was 
the  price  at  the  time  of  the  trial,  which  was  higher  than  that  at  the 
time  the  stock  ought  to  have  been  returned  ;  but  there  is  nothing  in 
these  cases  sanctioning  the  allowance  of  any  higher  price  which 
might  have  prevailed  at  an  intermediate  day.  The  ground  upon 
which  the  price  at  the  time  of  trial  was  allowed,  was  that  the  plaint- 
iff should  be  placed  in  the  same  situation  in  which  he  would  have 
been  had  the  stock  been  replaced  at  the  stipulated  time,  and  that  the 
court  would  not  act  upon  the  possibility  of  his  not  keeping  it,  but 
upon  the  presumption  that  he  would  have  retained  it  till  the  day  of 
trial,  and  hence  its  price  at  that  time  was  the  proper  indemnity. 

This  rule  necessarily  excludes  any  hypothetical  damage  based  upon 
the  supposed  loss  of  an  opportunity  to  sell  the  stocks  at  an  intermedi- 
ate time.  A  claim  for  a  similar  loss  was  made  in  one  of  the  cases 
cited  (McArthur  v.  Seaforth"),  where,  had  the  stock  been  replaced  at 
the  proper  time,  the  plaintiff  might  have  availed  himself  of  an  option 
given  by  the  government,  of  exchanging  it  for  other  stock  which 
at  the  time  of  trial  was  of  greater  value  than  the  stock  loaned.  But 
this  claim  was  rejected,  it  not  having  been  shown  to  be  probable  that 
the  plaintiff  would  have  made  the  exchange  (Greening  v.  "Wilkinson, 
10.  &  P.  025;  also  cited  in   romaine  v.  Van  Allen),  is  a  brief  nisi 


BAKER   v.    DRAKE.  621 

jprius  decision  of  Ch.  J.  xYbbott  in  an  action  for  the  conversion  of 
cotton  warrants,  in  which  he  says  that  the  amount  of  damages  is  for 
the  jury,  who  may  give  the  value  at  the  time  of  the  conversion  or  at 
any  subsequent  time  in  their  discretion,  because  the  plaintiff  might 
have  had  a  good  opportunity  of  selling  the  goods  if  they  had  not 
been  detained.  This  is  the  nearest  approach  to  an  authority  in  favor 
of  Romaine  v.  Tan  Allen  to  be  found  in  any  of  the  English  authorities 
cited,  and  although  but  a  nisi  jprius  decision,  is  entitled  to  great 
respect  on  account  of  the  eminence  of  the  judge  who  pronounced  it. 
Still  it  falls  short  of  sanctioning  the  doctrine  that  as  a  fixed  rule  the 
plaintiff  is  absolutely  entitled  to  recover  the  highest  price  prevailing 
at  any  time  before  the  end  of  the  trial,  without  any  evidence  show- 
ing that  it  was  even  probable  that  he  would  have  realized  such  price. 
Far  from  laying  down  any  such  rule,  Abbott,  Ch.  J.,  says  that  the 
amount  of  damages  is  for  the  jury,  who  may  in  their  discretion  allow 
the  value  at  a  subsequent  time  to  indemnify  against  the  loss  of  an 
opportunity  of  selling.  It  is  to  be  supposed  that  in  the  exercise  of 
this  discretion  the  jury  are  to  be  governed  by  the  evidence,  and  that 
they  must  be  satisfied  that  the  plaintiff  would  have  made  the  sale 
had  the  goods  not  been  detained. 

In  Kortright  v.  The  Commercial  Bank  of  Buffalo  (20  Wend.  91,) 
the  action  was  assumpsit  for  refusing  to  allow  a  transfer  of  shares  of 
bank  stock  upon  which  the  plaintiff  had  advanced  money.  The 
measure  of  damages  adopted  was  the  highest  price  between  the 
refusal  and  the  commencement  of  the  suit.  This  was  affirmed  by  the 
Court  of  Errors  (22  Wend.  348),  Senator  Yekplaxck  going  further 
than  the  court  below,  and  expressing  the  opinion  that  the  defendant 
was  liable  for  the  highest  price  before  the  trial;  citing  West  v. 
Wentworth  (3  Cow.  82),  and  Clark  v.  Pinney  (7  Cow.  596). 

These  were  actions  for  the  non-delivery  of  merchandise  in  pursu- 
ance of  a  contract  of  sale,  and  the  extreme  rule  was  applied  of  allow- 
ing to  the  vendee,  as  damages,  the  highest  value  up  to  the  time  of 
trial.  This  rule  was,  however,  strictly  confined  to  cases  where  the 
purchase-price  had  been  paid  in  advance,  it  being  conceded  that  in 
the  ordinary  case  where  the  price  was  to  be  paid  on  delivery,  the  only 
rule  is  the  market  value  on  the  clay  appointed  by  the  contract  for 
their  delivery.  It  cannot  be  disputed  that  this  distinction,  though 
questioned  by  high  authority,  has  long  been  acted  upon  in  this  State 
in  respect  to  contracts  for  the  sale  and  delivery  of  goods.  The 
reason  upon  which  it  is  founded  is  that,  where  the  purchaser  has  not 
paid  for  the  goods,  he  may,  on  the  refusal  of  his  vendee  to  deliver, 
go  into  the  market  and  buy  goods  of  a  similar  quality,  and  that  what 


622      CONVERSION.     RULES   OF   HIGHER   INTERMEDIATE   VALUE. 

it  would  cost  him  to  do  this  is  the  just  measure  of  his  damages  ;  but 
that  where  he  has  paid  the  purchase-money,  it  is  unreasonable  to 
require  him  to  pay  it  a  second  time,  and  therefore  all  fluctuations  in 
price  should  be  at  the  risk  of  the  vendor  who  refuses  to  deliver, 
while  retaining  the  purchase-money.  The  very  reasoning  upon  which 
these  decisions  are  founded  demonstrates  their  inapplicability  to  a 
case  like  the  present,  where  the  purchase-money  of  the  stocks  has  not 
been  paid  by  the  complaining  party,  and  the  only  additional  payment 
which  he  would  be  required  to  make  for  the  purpose  of  replacing  the 
stocks  would  be  such  as  was  occasioned  by  the  rise  in  the  market 
price. 

The  case  of  Allen  v.  Dykers  (3  Hill,  593 ;  affirmed,  7  id.  497),  is 
also  referred  to  in  Romaine  v.  Van  Allen.  Shares  of  stock  had  been 
deposited  with  the  defendants  as  collateral  security  for  a  loan,  for 
which  a  note  on  time  was  given,  containing  authority  to  sell  the  stock 
on  non-payment  of  the  note  at  maturity.  The  defendants  sold  a 
portion  of  the  stock  before  the  maturity  of  the  note,  and  the  plaintiff 
brought  his  action  to  recover  the  difference  between  the  value  of  the 
stock  and  the  amount  of  the  note.  There  was  evidence,  consisting 
of  a  book  kept  by  the  defendants,  that  they  had  been  dealers  in  the 
stock  and  had  realized  $99.50  per  share  for  some  of  it,  which  they 
had  sold  in  the  interim,  and  damages  were  awarded  at  that  rate.  In 
the  Supreme  Court  the  question  of  damages  was  not  discussed.  All 
that  there  appears  upon  the  subject  is  in  the  opinion  of  Nelson,  Ch. 
J.,  who  says  that  he  does  not  perceive  any  ground  for  interfering 
with  the  verdict  because  of  the  rule  of  damages  adopted  by  the 
circuit  judge,  and  in  the  Court  of  Errors  the  question  of  damages  is 
not  adverted  to.     Not  much  aid  is  to  be  derived  from  that  case. 

The  most  thorough  consideration  of  the  subject  to  be  found  in 
any  reported  case  is  contained  in  the  extremely  able  opinion  of  Duek, 
J.,  in  Suydam  v.  Jenkins  (3  Sandf.  Sup.  Court  Reports,  619  to  647), 
where  that  accomplished  jurist  reviews,  with  great  discrimination, 
many  of  the  cases  here  referred  to,  and  others  which  have  not  been 
cited,  and  arrives  substantially  at  the  same  conclusion  as  that  reached 
by  Ciiukcii,  Ch.  J.,  in  Matthews  v.  Coe  (49  N".  Y.),  that  the  highest 
price  which  the  property  has  borne  at  any  time  between  its  conver- 
sion and  the  trial  cannot  in  all  cases  be  the  just  measure  of  damages. 
The  reasoning  contained  in  that  opinion  is  of  such  force  as  to  out- 
weigh the  apparent  preponderance  of  authority  in  favor  of  the  rule 
claimed,  and  demonstrates  its  fallacy  when  applied  to  the  facts  of  the 
present  case,  whether  the  cause  of  action  be  deemed  for  conversion 
of  property  or  the  breach  of  a  contract. 


BAKER  v.   DRAKE.  623 

When  we  consider  the  opposition  which  this  rule  has  constantly 
encountered  in  the  courts,  the  variety  of  the  judgments  in  the  cases  in 
which  it  has  been  invoked,  and  the  doubting  manner  in  which  it  has 
been  referred  to  by  eminent  jurists,  whose  decisions  are  cited  in  its 
support,  it  cannot  be  regarded  as  one  of  those  settled  rules  to  which 
the  principle  of  stare  decisis  should  apply  (See  Starbuck  v.  Cortazzi, 
2  Cr.  Mees.  &  Rose.  165  ;  2  K.  Com.  637,  11th  ed.  note  ,  Owen  v. 
Eouth,  14  C.  B.  327;  Williams  v.  Archer,  5  Man.  Gr.  &  Scott,  318  ; 
Archer  v.  Williams,  2  Car.  &  Kir.  26  ;  Rand  v.  White  Mountains  R. 
R,  Co.  40  K  H.  79 ;  Brass  v.  Worth,  40  Barb.  648 ;  Pinkerton  v. 
Manchester  R.  R.  42  K  H.  424 ;  45  K  H.  545,  and  the  able  review 
of  the  subject  in  Sedgwick  on  Damages,  pp.  550  to  555,  note, 
5th  ed.). 

It  seems  to  me,  after  as  full  an  examination  of  the  subject  as 
circumstances  have  permitted,  that  the  dissenting  opinions  of  Grover 
and  Woodruff,  JJ.,  in  Markham  v.  Joudon,  embody  the  sounder 
reasons,  and  that  the  rale  of  damages  laid  down  in  that  case  and  fol- 
lowed in  the  present  one  is  not  well  founded,  and  should  not  be  sus- 
tained. 

For  this  reason,  without  passing  upon  the  other  questions  in- 
volved in  the  case,  I  think  the  judgment  should  be  reversed  and  a 
new  trial  ordered,  with  costs  to  abide  the  event. 

All  concur. 

Judgment  reversed. 

Note. — See  Baltimore  City  Passenger  Railway  Co.  v.  Sewell,  35,  Md.  238. 
In  the  case  of  the  Bank  of  Montgomery  v.  Reese,  26  Penn.  St.  143  (185G).  it 
is  held  as  follows : 

"  The  case  of  stock  is  an  exception  to  the  general  rule  applicable  to  chattels. 
It  is  made  an  exception  in  obedience  to  the  paramount  obligation  to  indemify 
the  party  for  his  loss.  The  rule  of  convenience  gives  place  to  the  rule  of  justice. 
The  moment  we  proceed,  on  this  ground,  to  take  it  out  of  the  general  rule,  we 
are  obliged  to  substitute  one  that  will  do  complete  justice  to  the  party  injured. 
'The  question  is,  what  did  the  plaintiff  lose?'  Kimmel  v.  Stoner,  6  Harris,  157. 
He  is  entitled  to  all  the  advantages  he  could  have  derived  from  the  stock,  if  it 
had  been  delivered  at  the  specified  time.  Harrison  v.  Harrison,  1  C.  &  P.  412. 
Those  advantages  are  the  highest  market  value  between  the  breach  and  the  trial, 
together  with  the  lomis  and  dividends  which  have  been  received  in  the  mean- 
time. Vaughan  v.  Wood,  1  Mylne  &  Keene,  403.  This  is  the  rule  where  the 
consideration  has  been  paid.  Where  it  has  not  been  paid  the  plaintiff  should  be 
allowed  the  difference  between  it  and  the  value  of  the  stock,  together  with  the 
difference  between  the  interest  on  the  consideration  and  the  dividends  on  the 
stock." 

The  rule  of  damages  laid  down  in  the  foregoing  case  was  adhered  to  by  the 
ccurt.     Whelan  v.  Lynch,  GO  X.  Y.  409. 


624  TROVER. 

TROVER. 

Trover  ;  Payment  in  Advance  ;  Hesale  by  Defendant. 


SUPREME   JUDICIAL    COURT,    MASSACHUSETTS. 

[1827.]  Kennedy  v.  Whitwell  (4  Pick.  4G6). 

In  trover,  the  value  of  the  article  at  the  time  of  the  conversion,  with  interest  from  that 
time  to  the  time  of  the  trial,  is  the  measure  of  damages  ;  and  the  facts,  that  before 
the  convention,  the  plaintiff,  as  vendee,  paid  the  defendant  f<>r  the  article,  and  the 
defendant,  before  the  trial,  resold  it  at  an  advanced  price,  do  not  take  the  ca^se  out 
of  the  rule. 

Trover  for  forty  barrels  of  gin  sold  by  the  defendants  to  the 
plaintiff,  on  the  22d  of  February,  1826,  at  the  rate  of  about  30  cents 
a  gallon.  On  the  22d  of  March  the  plaintiff  paid  the  price  and  de- 
manded the  gin,  but  the  defendants  refused  to  deliver  it ;  and  on 
the  15th  of  June,  this  action  was  commenced.  On  the  11th  of  No- 
vember, which  was  before  the  trial,  the  defendants  resold  the  gin 
for  about  46  cents  a  gallon,  the  terms  of  sale  being  cash.  The  jury 
found  a  verdict  for  the  plaintiff,  and  assessed  damages  in  a  sum 
equal  to  the  value  of  the  gin  on  the  22d  of  March,  the  time  of  the 
conversion,  with  interest  from  that  time  to  the  time  of  trial. 

F.  Dexter  contended  that,  as  the  vendee  had  paid  the  money  for 
the  article  sold,  and  the  vendor  refused  to  deliver  it,  the  vendee  was 
entitled  to  the  rise  in  value  of  the  article ;  that  he  might  take  as  the 
measure  of  damages,  either  the  value  at  the  time  of  the  conversion, 
or  the  value  at  the  time  of  the  trial,  as  in  the  case  of  contracts  for 
replacing  stock ;  and  as  the  article  had  been  resold  on  the  11th  of 
November,  the  price  then  obtained,  with  interest,  was  the  value  at 
the  time  of  the  trial  (1  Carr.  &  Payne,  625  ;  2  Barnw.  &  Cresw.  624  ; 
3  Cow.  82  ;  2  East,  211  ;  2  Taunt.  257 ;  3  Wheat.  204). 

W.  Simmons,  in  support  of  the  verdict,  cited  1  Burr.  31  ;  3 
Dane's  Abr.  194 ;  3  Campb.  477 ;  2  Johns.  Eep.  280  ;  3  Stark.  Ev. 
1503. 

Per  Curiam.  We  see  no  reason  for  departing  from  the  rule 
which  we  think  has  been  invariably  practised  upon  in  this  State, 
that  in  actions  of  trover,  the  value  of  the  article  sued  for  at  the  time 
of  the  conversion  is  to  fix  the  damages. 

Judgment  according  to  verdict. 


GREENFIELD   BANK  v.    LEAVITT.  635 


Trover  ;  General  Rule  ;  Mitigation  ;  Restoration  of  Property  ; 
Charges  on  it  after  Recovery  ;  Reward  Paid  for  its 
Recovery. 


SUPREME    JUDICIAL    COURT,    MASSACHUSETTS. 

[1835.]    Greenfield  Bank  v.  Horatio  Leavitt  (17  Pick.  1). 

Ia  trover,  the  value  of  the  property  when  converted,  with  interest  from  that  time,  is  in 
general  the  measure  of  damages,  and  if  the  property  is  restored  it  goes  in  mitigation 
of  damages;  but  if  the  restoration  is  obtained  by  the  offer  and  payment  of  a  reason- 
able reward,  this  amount,  with  interest  from  the  time  of  payment,  is  to  be  deducted 
from  the  property  restored. 

Trover.  At  the  trial  before  Wilde,  J.,  the  plaintiffs  proved  that 
on  January  28,  1833,  they  delivered  to  the  defendant  a  package  con- 
taining $7, 842  in  bank  bills,  the  property  of  the  plaintiffs,  and  an- 
other package,  the  property  of  the  Adams  Bank,  containing  $4,188, 
which  had  been  sent  to  the  plaintiffs  to  be  forwarded  to  the  Globe 
Bank  in  Boston.  The  money  was  lost,  and  on  January  30,  1833,  the 
plaintiffs  offered  a  reward  of  $1,000  to  any  person  who  would  restore 
all  the  money,  and  a  proportion  of  the  reward  for  a  proportion  of 
the  money.  On  February  6,  1833,  the  package  of  the  Adams  Bank 
was  found  and  restored  entire,  and  all  the  money  belono-ino;  to  the 
plaintiffs,  except  $1,012  ;  and  on  February  21st  the  plaintiffs  paid  to 
the  finders  $723,  part  of  the  reward  of  $1,000.  On  February  23d, 
the  plaintiffs  offered  a  further  reward  of  $250  for  the  residue  of  the 
money  lost,  and  on  the  8th  of  May  following,  the  whole  of  the 
residue,  except  $57,  was  found  and  restored  to  the  plaintiffs.  The 
property  was  of  equal  value  when  restored  as  when  lost.  On  De- 
cember 10,  1833,  the  plaintiffs  paid  $155,  part  of  the  last-mentioned 
reward,  and  were  discharged  by  the  finders. 

The  jury  were  instructed,  that  if  they  should  return  a  verdict  for 
the  plaintiffs,  the  rule  of  damages  would  be  the  value  of  the  property 
when  converted ;  that  the  restoration  of  the  property  would  go  in 
mitigation  of  damages  ;  but  that  if  the  jury  thought  the  rewards 
offered  were  reasonable  rewards,  they  should  deduct  the  amount 
paid,  with  interest  thereon  from  the  times  of  payment,  from  the 
amount  returned,  and  give  the  plaintiffs  a  verdict  for  the  balance. 
To  this  instruction  the  defendant  excepted. 

The  jury  returned  a  verdict  for  the  plaintiffs  for  $1,009,  and  if 
40 


626  TROVER. 

the  instruction  was  wrong,  judgment  was  to  be  rendered  for  the 
plaintiffs  for  $57,  and  interest  thereon  from  January  28,  1833,  and 
for  interest  on  the  other  sums  from  the  time  of  conversion  to  the 
times  at  which  they  were  restored ;  otherwise  judgment  was  to  be 
rendered  on  the  verdict. 

Putnam,  J.,  delivered  the  opinion  of  the  court.  The  general 
rule  in  trover,  that  the  measure  of  damages  is  the  value  of  the  ar- 
ticles at  the  time  of  the  conversion,  with  interest  until  the  time  of 
the  verdict,  is  established  in  this  commonwealth  (Kennedy  v.  Whit- 
well,  4  Pick.  466).  We  are  aware  that  it  has  been  ruled  differently 
by  Abbott,  Ch.  J.,  in  Greening  v.  Wilkinson  (1  Carr.  &  P.  625) ; 
where  he  held,  that  the  jury  might  iind  the  value  at  any  subsequent 
time.  But  we  adhere  to  the  value  at  the  time,  as  a  rule  which  works 
well :  and  its  certainty  is  quite  an  equivalent  for  its  occasional  want 
of  perfect  exactness. 

It  is  also  well  settled,  that  if  the  property  for  which  the  action  is 
brought  should  be  returned  to  and  received  by  the  plaintiff,  it  shall 
go  in  mitigation  of  damages.  But  if  it  became  subjected  to  a  charge 
after  the  conversion  and  before  it  was  returned ;  if,  for  example, 
the  conversion  were  of  a  watch,  which  the  defendant  threw  into  a 
well,  and  the  plaintiff  hired  a  man  to  descend  into  the  well  and  get 
it,  the  expense  of  reclaiming  it  should  be  deducted  from  the  value, 
when  returned.  It  is  the  charge  that  regulates  the  damages,  as 
Thompson,  J.,  said  in  Murray  v.  Burling  (10  Johns.  P.  176.  As  where 
one  takes  another's  horse  and  leaves  him  at  an  inn,  and  the  owner  re- 
claims him,  subject  to  the  charge  for  his  keeping.  The  damages 
are  for  the  injury  suffered,  notwithstanding  the  owner  has  regained 
his  property. 

And  we  do  not  think  this  comes  within  the  rule  of  not  allowing 
counsel  fees.  The  fee  bill  is  to  be  considered  as  the  legal  compen- 
sation for  the  costs. 

So  that  the  true  question  is,  whether  the  property  for  which  this 
action  was  brought,  and  which  has  been  returned  and  accepted,  came 
into  the  hands  of  the  plaintiffs,  subject  to  the  charge  of  the  reward 
offered  by  the  plaintiffs. 

It  is  contended  for  the  defendant,  that  this  would  give  to  the 
plaintiffs  a  power  to  increase  the  damages  at  their  discretion.  And 
we  know  no  reason,  in  the  case,  why  it  should  not  be  so,  confining 
the  plaintiffs  to  the  exercise  of  a  sound  discretion.  The  jury  have 
settled  that  matter,  and  found  that  the  reward  was  reasonable.  We 
are  therefore  to  presume  that  it  was  offered  under  a  belief  that  it 
was  necessary,  and  not  with  a  view  to  oppress  the  defendants.     The 


CHAMBERLIN   v.    SHAW.  627 

plaintiffs  became  liable  to  pay  the  reward  on  the  production  of  the 
money  which  had  been  converted  by  the  defendant,  and  so  the  in- 
struction to  the  jury,  that  they  should  deduct  the  reward  from  the 
amount  returned,  was  in  our  opinion  correct. 

Let  the  judgment  be  entered  for  the  plaintiffs  according  to  the 
verdict. 


Trover  ;    Circuity  of  Action  ;   Lien. 


SUPREME   JUDICL1L    COURT,    MASSACHUSETTS. 

[1836.]  Chamberlin  v.  Shaw  (18  Pick.  278). 

A  farm  and  a  certain  number  of  sheep  were  leased,  "  to  hold  one  year  from  the  1st  of 
April,  1833,  reserving  550  lbs.  of  wool  of  a  quality  of  an  average  with  the  flock;"  and 
it  was  further  stipulated  in  the  lease  that  the  sheep  should  not  be  counted  to  the 
lessee  till  after  shearing  in  June,  1833,  and  that  they  should  be  counted  back  to  the 
lessor  after  shearing  in  June,  1834.  The  lessee  sheared  the  sheep  in  June,  1834,  and 
sold  the  wool.  In  trover  by  the  lessor  against  the  lessee  and  his  vendee,  it  was  held, 
that  from  April  to  June,  1834,  the  lessee  had  neither  the  general  nor  special  property 
in  the  sheep,  nor  the  legal  custody  or  possession,  but  that  he  had  a  right  by  implica- 
tion to  enter  on  the  farm  at  a  suitable  time  to  shear  them  and  count  them  out  to  the 
lessor  ;  that  the  general  property  in  the  sheep,  and  consequently  in  their  wool,  was 
in  the  lessor,  and  the  implied  stipulation,  that  the  lessee  should  have  all  the  wool  over 
550  lbs.,  was  an  executory  contract,  which  vested  no  property  in  the  lessee  in  any  part 
of  the  wool  before  a  separation  of  the  550  lbs.  from  the  remainder,  and  as  no  separa- 
tion had  taken  place  at  the  time  of  the  sale  and  of  the  lessor's  demand  of  the  wool,  the 
property  continued  in  the  lessor ;  that  the  measure  of  the  plaintiff's  damages  was 
the  value  of  the  550  lbs.  at  the  time  of  the  conversion  ;  that  as  the  two  defendants 
were  together  and  both  in  possession  of  the  wool,  and  both  refused  to  deliver  it  up 
on  demand,  there  was  a  joint  conversion  which  would  sustain  an  action  againt  them 
jointly ;  and  that  it  was  not  necessary  for  the  plaintiff  to  prove  that  the  vendee  had 
notice  of  the  invalidity  of  the  lessee's  title. 

Trover  for  1,000  lbs.  of  wool.  Ebenezer  T.  Shaw,  one  of  the 
defendants,  was  defaulted ;  and  the  other,  dishing  Shaw,  pleaded 
the  general  issue,  which  was  joined. 

At  the  trial,  before  Wilde,  J.,  the  plaintiff  produced  a  lease,  not 
under  seal,  by  which  he  leased  to  Ebenezer  T.  Shaw  a  farm  in  Wind- 
sor and  300  sheep,  "to  hold  one  year  from  the  1st  of  April,  1833, 
reserving  550  lbs.  of  wool  of  a  quality  of  an  average  with  the  flock  ;" 
and  by  the  subsequent  terms  of  the  lease,  it  was  agreed  that  the 
sheep  should  not  be  counted  to  the  lessee  till  after  shearing  in  June. 


628  TROVER. 

1833,  and  that  they  should  be  counted  back  to  the  plaintiff  after 
shearing  in  June,  1834 ;  the  lessee  to  make  good  any  deficiency,  and 
to  take  the  risk  of  the  sheep  till  they  were  so  counted  back.  There 
was  no  provision  made  for  rent  other  than  is  above  set  forth. 

It  appeared  that  the  farm  was,  until  April,  1833,  in  the  tenancy 
of  one  Painter,  who,  by  the  terms  of  his  lease,  was  to  have  one-half 
of  the  wool  of  the  sheep  from  the  shearing  of  the  summer  of  1833 ; 
that  the  plaintiff  and  Painter  had  the  wool  of  that  shearing  accord- 
ingly ;  that  the  farm  was  leased  to  one  Trough,  from  April  1,  1834, 
out  that  he  was  not  to  have  the  wool  of  the  sheep  till  the  shearing 
of  1S35,  the  plaintiff  and  Ebenezer  T.  Shaw  both  saying  to  him,  at 
the  time  of  the  letting,  that  Ebenezer  was  to  have  the  wool  of  the 
shearing  of  1834,  excepting  550  lbs.  thereof,  which  he  was  to  render 
to  the  plaintiff  for  the  rent  of  the  previous  year. 

Ebenezer  T.  Shaw  sheared  the  sheep  in  June,  1834 ;  and  there 
was  evidence  tending  to  show  a  sale  of  the  wool  by  him  to  Cushing 
Shaw.  While  Cushing  had  the  wool  in  his  possession,  and  was  on 
the  way  with  it,  in  company  with  Ebenezer,  to  his  own  residence, 
the  agent  of  the  plaintiff  demanded  of  them  550  lbs.  of  the  wool, 
claiming  it  by  virtue  of  the  lease  from  the  plaintiff  to  Ebenezer;  but 
Cushing  refused  to  give  up  the  wool. 

The  defendants  contended  that,  upon  these  facts,  the  plaintiff 
either  had  no  property  in  the  wool,  or  was  a  tenant  in  common  with 
Ebenezer,  and  that,  in  either  case,  he  could  not  prevail  in  this  suit ; 
but  the  judge,  for  the  purposes  of  the  trial,  ruled  that  the  plaintiff 
could  maintain  the  action  for  550  lbs.  of  the  wool. 

It  appearing  that  there  was  more  than  550  lbs.  of  the  wool  in  the 
possession  of  Cushing,  the  plaintiff  insisted  that  he  had  such  a  prop- 
erty in,  or  lien  upon,  the  wool ;  that  damages  should  be  assessed  in 
his  favor  for  the  whole  amount  of  the  wool,  including  the  excess 
over  550  lbs.  ;  but  the  judge  ruled  otherwise. 

The  jury  assessed  damages  for  the  plaintiff  at  the  sum  of 
$304  39.' 

The  court  were  to  render  judgment  on  the  verdict,  or  grant  a 
new  trial,  or  direct  a  nonsuit,  according  to  the  law. 

Shaw,  C.  J.,  delivering  the  opinion  of  the  court,  held  that  E.  T. 
Shaw  had,  from  April  to  June,  1834,  neither  general  nor  special 
property  in  the  sheep,  nor  their  legal  custody  or  possession ;  but  had 
a  right  by  implication  to  enter  at  a  suitable  time  to  shear  them,  and 
count  them  out  to  the  owner ;  also  that  the  evidence  showed  a  joint 
conversion  sufficient  to  enable  the  plaintiff  to  maintain  the  action. 
The  remainder  of  the  opinion  is  as  follows : 


CHAMBERLIN   v.   SHAW.  629 

The  court  are,  therefore,  of  opinion  that,  at  the  time  of  the 
shearing,  the  general  property  in  the  whole  of  the  wool  was  in  the 
plaintiff,  and  as  no  separation  had  taken  place,  it  remained  in  him  at 
the  time  of  the  conversion. 

It  is  then  asked,  if  the  plaintiff  was  the  owner  of  the  whole  at  the 
time  of  the  conversion,  why  the  damages  should  not  have  been  as- 
sessed for  the  whole  amount. 

In  an  action  of  trover,  though  the  plaintiff's  possession  of  the 
property  has  been  violated,  lie  waives  all  claim  to  damages  on  account 
of  that  violation,  and  seeks  an  indemnity  only  for  the  loss  of  his 
property.  Hence  it  is,  that  the  value  of  the  property  at  the  time  of 
the  conversion  is  prima  facie  the  measure  of  damages.  Now  if  the 
case  is  so  situated  that  the  plaintiff  can  be  indemnified  by  a  sum  of 
money  less  than  the  full  value,  there  seems  to  be  no  reason  why  it 
should  not  be  done,  as  where  the  plaintiff  has  a  special  property,  sub- 
ject to  which  the  defendant  is  entitled  to  the  goods.  For  instance, 
a  factor  has  a  lien  on  goods  to  half  their  value.  The  principal  be- 
comes bankrupt,  and  the  property  vests  in  his  assignees,  subject  of 
course  to  all  legal  liens.  The  assignees  denying  and  intending  to 
contest  the  factor's  lien,  get  possession  of  the  goods  and  convert 
them.  The  factor  brings  trover,  establishes  his  lien,  and  recovers. 
How  shall  damages  be  assessed  ?  If  he  recover  the  full  value  of  the 
goods,  he  will  be  responsible  directly  back  to  the  defendants  them- 
selves for  a  moiety  of  the  value.  To  avoid  circuity  of  action,  why 
should  not  damages  be  assessed  to  the  amount  of  his  lien  ?  He  is 
fully  indemnified,  the  balance  of  the  value  is  in  the  hands  of  those 
entitled  to  it,  and  the  whole  controversy  is  settled  in  one  suit.  If 
the  plaintiff  is  responsible  over  to  a  third  person,  or  if,  for  any  cause, 
the  defendant  is  not  entitled  to  the  balance  of  the  value,  a  very  dif- 
ferent rule  would  prevail,  and  justice  would  require  that  the  whole 
value  of  the  property  should  be  assessed  to  the  plaintiff.  Green  v. 
Farmer,  4  Burr.  2214.  This  is  such  a  case  ;  on  a  severance,  the  de- 
fendant, Ebenezer  T.  Shaw,  would  have  been  entitled  to  all  over 
550  lbs.,  and  he  transferred  his  right  and  interest  to  the  other  defend- 
ant. The  plaintiff  is  indemnified  by  a  recovery  to  the  value  of  his 
550  lbs.,  and  he  will  be  responsible  over  to  no  other  person.  We  think, 
therefore,  there  is  no  reason  to  disturb  the  assessment  of  damages. 


630  TROVER, 


Case  for  Wrongful  taking  of  Property. 


SUPREME  COURT,  NEW  YORK. 

[1838.]      Bennett  v.  Lockwood  et  al.  (20  Wend.  223). 

"Where  a  bailor  had  expended  time  and  money  in  searching  for  property  wrongfully 
taken  from  a  bailee :  Held,  that  the  search  was  a  natural  and  proximate  consequence 
of  the  wrongful  act,  and  therefore  the  expenses  of  searching  could  be  recovered  as 
part  of  the  damage. 

Error  from  the  Oswego  Common  Pleas. 

Lockwood  and  Carter  having  let  for  hire  a  horse  and  wagon  to 
one  Crippen,  they  were  wrongfully  taken  from  Crippen's  possession 
by  Bennett,  who  used  them  in  his  own  business.  The  owners  of  the 
property  brought  suit  against  Bennett  in  a  justice's  court,  alleging  as 
special  damage  the  expenses  of  searching  for  the  property.  The 
plaintiffs  obtained  a  verdict  for  $32,  and  on  appeal  to  the  Oswego 
Common  Pleas,  a  verdict  was  rendered  in  their  favor  for  $53.  The 
plaintiffs  were  permitted,  against  the  defendant's  objection,  to  prove 
the  expenses  of  the  search,  and  defendant  excepted. 

The  court  charged  the  jury  that  the  plaintiffs  were  entitled  to 
damages  both  for  the  taking  of  the  property  and  for  the  expenses  of 
searching  for  it.  The  defendant  excepted  to  the  charge,  and  sued 
out  a  writ  of  error. 

By  the  Court,  Nelson,  Ch.  J. — The  defendant  took  the  horse  and 
wagon  of  the  plaintiffs  wrongfully,  and  used  them,  by  reason  of 
which  taking  the  plaintiffs  were  induced  to  believe  that  the  person  to 
whom  they  had  hired  it  temporarily  had  absconded,  and  therefore 
they  went  in  pursuit  of  their  property,  and  expended  time  and  money. 
It  is  insisted  for  the  plaintiff  in  error,  that  the  common  pleas  erred  in 
allowing  the  plaintiffs  to  recover  for  the  time  spent  and  expenses  in- 
curred, on  the  ground  that  the  damages  thus  claimed  were  not  the 
natural  or  necessary  consequence  of  the  wrongful  taking".  Admitting 
the  counsel  for  the  plaintiff  to  be  right  in  this  proposition,  it  is  no 
objection  to  the  recovery  if  the  damages  were  proximate  and  not  too 
remote,  and  were  claimed  in  the  declaration  (1  Chitty's  E.  333 ;  1 
Saund.  PL  &  Ev.  136).  Here  the  damages  were  duly  claimed;  they 
occurred  in  the  use  of  reasonable  means  on  the  part  of  the  plaintiffs 
to  repossess  themselves  of  their  property,  and  were  occasioned  by  the 
wrongful  act  of  the  defendant 

Judgment  affirmed. 


CHINERY   v.   VIALL.  631 


Trover  ;  Deprivation  of  Possession  ;  Mitigation. 


COURT    OF    EXCHEQUER. 

[i860.]         Chlneky  v.  Viall  (5  Hurl.  &  Nor.  288). 

A.  having  bought  some  sheep  on  credit  left  them  in  the  custody  of  the  vendor.  Without 
any  default  on  the  part  of  A.  the  vendor  resold  the  sheep, — Held :  First,  that,  though 
the  price  had  not  been  paid  or  tendered  by  A.,  the  resale  was  a  conversion  of  the 
sheep  by  the  vendor,  in  respect  of  which  A.  was  entitled  to  maintain  trover. 

Secondly.  That  the  measure  of  damage  was  not  the  value  of  the  sheep,  but  the  loss  sus- 
tained by  A.,  by  not  having  the  sheep  delivered  to  him  at  the  price  agreed  on. 

Declaration. — First  count  :  That  the  plaintiff  agreed  with  the 
defendant  to  buy,  and  the  defendant  agreed  with  the  plaintiff  to  sell 
to  him,  48  sheep,  to  be  taken  and  fetched  away  from  the  defendant's 
premises  within  a  fortnight,  at  53s.  a  head  ;  and  though  plaintiff  was 
always  ready  and  willing  to  pay,  and  all  things  happened  to  entitle 
the  plaintiff  to  have  the  sheep  delivered  to  him,  yet  the  defendant 
refused  to  allow  the  plaintiff  to  have  or  take  the  sheep,  &c.  Second 
count :  Trover  for  43  sheep. 

Pleas. — To  the  first  count :  Traverse  of  agreement.  To  the  second 
count  :  First,  not  guilty ;  secondly,  that  the  goods,  <fcc,  were  not 
the  goods,  <fec,  of  the  plaintiff.     Whereupon  issue  was  joined. 

At  the  trial,  before  Bramwell,  B.,  at  the  sittings  in  London  after 
last  Trinity  Term,  the  plaintiff  proved  that,  on  the  10th  of  January, 
1859,  the  defendant  agreed  to  sell  him  48  sheep  at  53-5.  a  head.  The 
plaintiff  took  five  away  on  that  day,  and  said  he  would  send  some 
money  on  the  following  Saturday.  On  that  day  the  defendant 
wrote  to  the  plaintiff  the  following  note  : 
"  Mr  Chinery. 

"  I  should  thank  yon,  according  to  promise,  to  send  me  by  bearer 
121.  or  13Z.  towards  the  sheep  you  had  on  Monday.  The  reason  of 
sending  so  early,  I  want  to  go  another  way. 

"  Yours,  &c,  "  Alfred  P.  Viall." 

The  plaintiff  sent  the  defendant  151.     On  the  same  day  the  de- 
fendant wrote  another  note  to  the  plaintiff  as  follow>  : 
"Mr.  Chinery. 

"I  find  by  my  man  that  you  sent  by  him  15/.,  which  is  11.  15s. 
more  than  five  sheep  come  to  ;  which  I  have  returned.  At  the  same 
time  I  wish  to  inform  you  I  do  not  intend  letting  any  more  sheep 
out  of  my  yard  before  they  are  paid  for. 

"  Yours,  &c,  "  A.  P.  Viall." 


632  TROVER. 

On  the  following  Monday  the  plaintiff  went  to  take  away  19l 
sheep.  He  saw  the  defendant,  who  said  he  had  sent  the  sheep  to 
London,  where  in  fact  he  sold  them  at  52s.  a  head. 

The  learned  judge  told  the  jury  that,  by  the  contract,  the  prop- 
erty in  the  sheep  passed  to  the  plaintiff,  and  that  the  defendant 
ought  not  to  have  parted  with  them.  And  his  lordship  asked  the 
jury  whether  they  thought  the  bargain  was  that  the  plaintiff  was  not 
to  have  the  sheep  until  he  paid  for  them  ;  also  what  damages  the 
plaintiff  had  sustained  by  not  having  the  sheep  delivered  to  him. 
The  jury  found  that  the  plaintiff  was  to  have  the  sheep  before  pay- 
ing for  them,  and  that  he  had  sustained  51.  damages.  Upon  which 
the  learned  judge  directed  a  verdict  to  be  entered  for  the  plaintiff 
on  both  counts  for  118£.  19s.,  the  value  of  the  sheep,  reserving  leave 
to  the  defendant  to  move  to  reduce  the  verdict  to  51.,  and  enter  a 
verdict  for  the  defendant  on  the  count  in  trover. 

A  rule  nisi  was  obtained  accordingly,  and  argument  had  thereon, 
after  which  Bramwell,  B.,  delivering  the  opinion  of  the  court,  held 
that  the  plaintiff  had  such  a  right  of  property  and  possession  as  was 
necessary  to  enable  him  to  maintain  the  action. 

The  remainder  of  the  learned  Baron's  opinion  is  as  follows  : 

But  it  was  further  urged  on  the  part  of  the  defendant,  that,  sup- 
posing trover  maintainable,  the  damages  recoverable  on  either  count 
ought  to  be  no  more  than  were  really  sustained  by  the  plaintiff,  that 
is,  the  value  of  the  sheep,  minus  the  price  he  would  have  had  to  pay 
for  them  if  they  had  been  delivered  to  him  ;  and  that  therefore  51. 
would  be  ample  damages,  and  that  a  farthing  would  have  been  suf- 
ficient. Upon  that  point  our  opinion  is  in  favor  of  the  defendant, 
viz.,  that  the  plaintiff  is  entitled  to  recover  no  more  than  the  real 
damage  he  has  sustained.  In  Lamond  v.  Davall  (9  Q.  B.  1030  [E.  C. 
L.  R.  vol.  58]),  the  plaintiff  had  sold  shares  to  the  defendant  which 
he  had  not  accepted,  and  the  plaintiff  had  resold  them  ;  it  was  held 
that  after  that  he  could  not  sue  the  defendant  for  goods  bargained 
and  sold.  If  that  is  so,  the  defendant  could  not  maintain  such  an  ac- 
tion in  the  present  case  ;  and  as  the  vendor  could  not  sue  for  goods 
bargained  and  sold,  the  result  is  that  he  could  not  in  any  form  of  ac- 
tion recover/  the  price  ;  and  it  would  be  singular  if  the  same  act 
which  saved  the  vendee  the  price  of  the  sheep  should  vest  in  him  a 
right  of  action  for  their  full  value  without  deducting  the  price.  The 
cases  on  this  subject  are  well  put  together  in  Mayne  on  Damages 
(p.  215),  and  show  that  in  this  action  it  is  not  an  absolute  rule  of  law 
that  the  value  of  the  goods  is  to  be  taken  as  the  measure  of  damage. 
There  are  several  cases  which  may  be  mentioned  as  illustrative  of 


CHINERY  v.   VIALL.  633 

this.  For  instance,  where  a  defendant,  after  having  been  guilty  of 
an  act  of  conversion,  delivers  the  goods  back  to  the  plaintiff,  the 
actual  damage  sustained,  and  not  the  value,  is  the  measure  of  dam- 
ages. So,  where  a  man  has  temporary  possession  of  a  chattel,  the 
ownership  being  in  another,  the  bailee,  no  doubt,  may  maintain  an 
action ;  but  only  for  the  real  damage  sustained  by  him  in  the  depri- 
vation of  the  possession.  Other  cases  might  be  cited  to  show  that 
there  is  no  such  absolute  rule  of  law  as  to  the  damages  in  trover  as 
that  suggested.  In  Read  v.  Fairbanks  (13  C.  B.  692  [E.  C.  L.  E. 
vol.  76]),  an  unfinished  ship  was  taken  and  then  completed,  and  af- 
ter its  completion  converted  ;  it  was  held  that  the  plaintiff  was  en- 
titled to  the  value  at  the  time  when  the  defendant  took  it,  not  at  the 
time  when  he  converted  the  completed  ship  to  his  own  use.  To  the 
same  effect  is  the  case  of  Brierly  v.  Kendall  (17  Q.  B.  937  [E.  C.  L.  B. 
vol.  79)]  ;  the  principle  deducible  from  the  authorities  being  that  a 
man  cannot  by  merely  changing  the  form  of  action  entitle  himself  to 
recover  damages  greater  than  the  amount  to  which  he  is  in  law  en- 
titled, according  to  the  true  facts  of  the  case  and  the  real  nature  of 
the  transaction.  Here  the  result  is,  that  the  plaintiff  is  entitled  to 
recover  51.  only. 

It  is  not  to  be  understood  that,  though  in  the  present  case  the 
plaintiff  cannot  recover  more,  if  a  stranger  had  converted  the  goods 
the  plaintiff  would  not  have  been  entitled,  as  against  him,  to  recover 
the  whole  amount  of  the  value  or  proceeds.  That  might  depend 
upon  whether  the  plaintiff  would  be  liable  to  the  seller  for  the  con- 
tract price  ;  and  probably  in  such  a  case  he  would,  for  there  the 
seller  would  be  in  no  default ;  and  if  he  could  not  deliver  the  goods 
owing  to  the  wrongful  act  of  a  third  party,  it  may  be  that  he  could 
recover  the  whole  price,  and  the  vendee  would  be  entitled  to  recover 
the  amount  from  the  stranger.  The  verdict  must  stand  as  found  by 
the  jury,  but  be  reduced  to  51. 

Eule  absolute  to  reduce  the  damages. 


634  TROVER. 


Trover  ;  Actual  Damage  ;  Nominal  Damages. 


COURT    OF    COMMON    PLEAS. 

[1833.]    Johnson,  Assignee,  v.  Steak  (15  C.  B.  N.  S.  330). 

A.  deposited  a  dock-warrant  for  brandies  with  B.,  as  a  security  for  a  loan,  which  was  to 
be  repaid  on  the  29th  of  January,  or,  in  default,  the  brandies  were  to  be  forfeited. 
On  the  28th,  B.  agreed  for  the  sale  of  the  brandies  to  C,  and  on  the  29th  delivered 
to  him  the  dock-warrant,  and  C.  took  actual  possession  of  the  brandies  on  the  30th. 

Held,  that  the  sale  on  the  28th,  and  the  delivery  of  the  dock-warrant  to  the  vendee  on 
the  29th — A.  having1"  the  whole  of  that  day  to  redeem  it — amounted  to  a  conversion. 

And  held,  by  Erle,  Ch.  J.,  Btles,  J.,  and  Keating,  J.,  that  the  proper  measure  of  dam- 
ages was  the  actual  damage  A.  had  sustained  by  the  wrongful  conversion,  which, 
as  there  was  no  intention  on  his  part  to  redeem  the  pledge,  was  merely  nominal. 

But  by  Williams,  J.,  that  the  proper  measure  of  damages  was  the  value  of  the  thing  con- 
verted—the  bailment  having  been  terminated  by  the  wrongful  sale. 

This  was  an  action  brought  by  the  plaintiff  as  assignee  of  one 
Mathew  Cumming,  a  bankrupt,  for  the  alleged  wrongful  conversion 
by  the  defendant  of  243  cases  of  brandy  and  a  pipe  of  wine. 

The  defendant  pleaded  not  guilty  and  not  possessed,  whereupon 
issue  was  joined. 

The  cause  was  tried  before  Erle,  Ch.  J.  The  facts  as  proved  or  ad- 
mitted were  as  follows  : — On  the  26th  of  January,  1862,  the  bank- 
rupt, Cumming,  applied  to  the  defendant  for  an  advance  of  621.  10s. 
upon  the  security  of  certain  brandies  then  lying  in  the  London 
Docks.  The  defendant  consented  to  make  the  advance,  and  Cum- 
ming gave  him  his  acceptance  at  one  month  for  the  amount,  at  the 
same  time  handing  him  the  dock-warrant  for  the  brandies  and  the 
following  memorandum  : 

"  I  have  this  day  deposited  with  yon  the  undermentioned  243 
cases  of  brandy,  to  be  held  by  you  as  a  security  for  the  payment  of 
my  acceptance  for  621.  10.?.,  discounted  by  you,  which  will  become 
due  January  29th,  1863;  and,  in  case  the  same  be  not  paid  at  ma- 
turity, I  authorize  you  at  any  time,  and  without  further  consent  by 
or  notice  to  me,  to  sell  the  goods  above  mentioned,  either  by  public 
or  private  sale,  at  such  price  as  you  think  fit,  and  to  apply  the  pro- 
ceeds, after  all  charges,  to  the  payment  of  the  bill ;  and,  if  there 
should  be  any  deficiency,  I  engage  to  pay  it. 

(Signed)  "  M.  Cumming." 

On  the  3d  of  January,  Cumming  obtained  from  the  defendant  a 


JOHNSON   v.    STEAR.  635 

farther  advance  of  25?.  upon  the  security  of  a  warrant  for  a  pipe  of 
port  wine,  with  an  I.  O.  U.  and  a  post-dated  check  (7th  January), 
but  no  distinct  authority,  as  in  the  case  of  the  brandies,  to  sell  on 
default  of  payment  on  a  given  day. 

Gumming  absconded  on  the  5th  of  January,  and  was  declared 
a  bankrupt  on  the  17th  ;  and  the  plaintiff  was  afterwards  appointed 
assignee. 

On  the  28th  of  January,  the  defendant  contracted  to  sell  the 
brandies  to  Messrs.  Ruck  &  Co.  On  the  29th  (the  day  on  which 
Cumming's  acceptance  became  due)  the  dock-warrant  was  delivered 
to  them,  and  on  the  30th  they  took  actual  possession  of  the  brandies. 
The  check  given  by  Gumming  for  the  second  advance  being  also  dis- 
honored, the  defendant  sold  the  wine  for  401.  The  demand  and  re- 
fusal were  on  the  27th  of  February. 

On  the  part  of  the  defendant  it  was  submitted  that  there  was  no 
conversion,  and  that  the  transactions  were  protected,  the  adjudica- 
tion being  now  the  dividing  line  ;  and  that,  at  all  events,  the  plaintiff 
was  only  entitled  to  nominal  damages  for  the  premature  sale  of  the 
brandies — it  being  assumed  that  the  bankrupt  had  no  intention  to 
avail  himself  of  his  right  of  redemption. 

Under  the  direction  of  the  learned  judge,  the  jury  returned  a 
verdict  for  the  plaintiff,  assessing  the  value  of  the  wine  at  40?.,  and 
that  of  the  brandies  at  621.  10s. :  and  leave  was  reserved  to  the  de- 
fendant to  move  to  enter  a  verdict  for  him  if  the  court  should  be  of 
opinion  that  the  plaintiff  was  not  entitled  to  recover. 

The  rule  to  show  cause  having  been  obtained  and  argued,  and  the 
court  having  taken  time  to  consider  its  opinion, 

Erle,  Ch.  J.,  after  stating  the  facts,  delivered  the  judgment  of 
a  majority  of  the  court. 

Upon  these  facts,  the  questions  are,  first,  was  there  a  conversion  1 
and  if  yes,  secondly,  what  is  the  measure  of  damages  ? 

To  the  first  question  our  answer  is  in  the  affirmative.  *  *  *  * 

Then  the  second  question  arises  : 

The  plaintiff  contends  that  he  is  entitled  to  the  full  value  of  the 
goods  sold  by  the  defendant,  without  any  deduction,  on  the  ground 
that  the  interest  of  the  defendant  as  bailee  ceased  when  he  made  a 
wrongful  sale,  and  that  therefore  he  became  liable  to  all  the  dam- 
ages which  a  mere  wrong-doer  who  had  wilfully  appropriated  to 
himself  the  property  of  another  without  any  right  ought  to  pay. 
But  we  are  of  opinion  that  the  plaintiff  is  not  entitled  to  the  full 
value  of  the  goods.  The  deposit  of  the  goods  in  question  with  the 
defendant  to  secure  repayment  of  a  loan  to  him  on  a  given  day,  with 


636  TROVER. 

a  power  to  sell  in  case  of  default  on  that  day,  created  an  interest 
and  a  right  of  property  in  the  goods,  which  was  more  than  a  mere 
lien  ;  and  the  wrongful  act  of  the  pawnee  did  not  annihilate  the 
contract  between  the  parties  nor  the  interest  of  the  pawnee  in  the 
goods  under  that  contract. 

It  is  clear  that  the  actual  damage  was  merely  nominal.  The  de- 
fendant, by  mistake,  delivered  over  the  dock-warrant  a  few  hours 
only  before  the  sale  and  delivery  by  him  would  have  been  lawful ; 
and  by  such  premature  delivery  the  plaintiff  did  not  lose  anything, 
as  the  bankrupt  had  no  intention  to  redeem  the  pledge  by  paying 
the  loan. 

If  the  plaintiff's  action  had  been  for  breach  of  contract  in  not 
keeping  the  pledge  till  the  given  day,  he  would  have  been  entitled 
to  be  compensated  for  the  loss  he  had  really  sustained,  and  no  more  ; 
and  that  would  be  a  nominal  sum  only.  The  plaintiff's  action 
here  is  in  name  for  the  wrongful  conversion ;  but,  in  substance, 
it  is  the  same  cause  of  action ;  and  the  change  of  the  form  of 
pleading  ought  not  in  reason  to  affect  the  amount  of  compensation 
to  be  paid. 

There  is  authority  for  holding,  that,  in  measuring  the  damages  to 
to  be  paid  to  the  pawnor  by  the  pawnee  for  a  wrongful  conversion 
of  the  pledge,  the  interest  of  the  pawnee  in  the  pledge  ought  to  be 
taken  into  the  account.  On  this  principle  the  damages  were  measured 
in  Chinery  v.  Yiall  (5  Hurlst.  &  K  288).  There,  the  defendant  had 
sold  sheep  to  the  plaintiff;  and,  because  there  was  delay  in  the  pay- 
ment of  the  price  by  the  plaintiff,  the  defendant  resold  the  sheep. 
For  this  wrong  the  court  held  that  trover  lay,  and  that  the  plaintiff 
was  entitled  to  recover  damages  ;  but  that,  in  measuring  the  amount 
of  those  damages,  although  the  plaintiff  was  entitled  to  be  indemni- 
fied against  any  loss  he  had  really  sustained  by  the  resale,  yet  the 
defendant,  as  an  unpaid  vendor,  had  an  interest  in  the  sheep  against 
the  vendee  under  the  contract  of  sale,  and  might  deduct  the  price 
due  to  himself  from  the  plaintiff,  from  the  value  of  the  sheep  at  the 
time  of  the  conversion. 

In  Story  on  Bailments  (§  315),  it  is  said  :  "  If  the  pawnor,  in  con- 
sequence of  any  default  or  conversion  by  the  pawnee,  has  recovered 
back  the  pawn  or  its  value,  still  the  debt  remains  and  is  recoverable, 
unless  in  such  prior  action  it  has  been  deducted  ;  and  it  seems  that, 
by  the  conmon  law,  the  pawnee  in  such  action  for  the  value  has  a 
right  to  have  the  amount  of  his  debt  recouped  in  damages."  For 
this  he  cites  Jarvis  v.  Rogers  (15  Mass.  II.  3S9).  The  principle  is 
also  exemplified  in  Brierly  v.  Kendall  (17  Q.  B.   937  [E.   C.  L.  JR. 


JOHNSON  v.    STEAR.  637 

vol.  79]).  There,  although  the  form  of  the  security  was  a  mortgage, 
and  not  a  pledge ;  and  although  the  action  was  trespass,  and  not 
trover ;  yet  the  substance  of  the  transaction  was  in  close  analogy 
with  the  present  case.  There  was  a  loan  by  the  defendant  to 
the  j)laintiff,  secured  by  a  bill  of  sale  of  the  plaintiff's  goods, 
in  which  was  a  reservation  to  the  plaintiff  of  a  right  to  the 
possession  of  the  goods  till  he  should  make  default  in  some  payment. 
Before  any  default,  the  defendant  took  the  goods  from  the  plaintiff", 
and  sold  them.  For  this  wrong  he  was  liable  in  trespass ;  but  the 
measure  of  damages  was  held  to  be,  not  the  value  of  the  goods,  but 
the  loss  which  the  plaintiff1  had  really  sustained  by  being  deprived 
of  the  possession.  The  wrongful  act  of  the  defendant  did  not  an- 
nihilate his  interest  in  the  goods  under  the  bill  of  sale ;  and  such  in- 
terest was  to  be  considered  in  measuring  the  extent  of  the  plaintiff's 
right  to  damages. 

On  these  authorities  we  hold  that  the  damages  due  to  the  plaintiff 
for  the  wrongful  conversion  of  the  pledge  by  the  defendant,  are  to 
be  measured  by  the  loss  he  has  really  sustained ;  and  that,  in  meas- 
uring those  damages,  the  interest  of  the  defendant  in  the  pledge  at 
the  time  of  the  conversion  is  to  be  taken  into  the  account.  It  fol- 
lows that  the  amount  is  merely  nominal,  and  therefore  that  the  ver- 
dict for  the  plaintiff  should  stand,  with  damages  40s. 

Williams,  J. — I  agree  with  the  rest  of  the  court  that  there  was 
sufficient  proof  of  a  conversion.  *  *  *  * 

But  I  cannot  agree  with  my  lord  and  my  learned  brothers  as  to 
the  other  point ;  for,  I  think  the  damages  ought  to  stand  for  the  full 
value  of  the  brandies.  The  general  rule  is  indisputable,  that  the 
measure  of  damages  in  trover,  is,  the  value  of  the  property  at  the 
time  of  the  conversion.  To  this  rule  there  are  admitted  exceptions. 
There  is  the  well-known  case  of  redelivery  of  the  goods  before  ac- 
tion brought,  which,  though  it  cannot  cure  the  conversion,  yet  will 
go  in  mitigation  of  damages.  Another  exception  is  to  be  found  in 
cases  where  the  plaintiff  has  only  a  partial  interest  in  the  thing  con- 
verted. Thus,  if  one  of  several  joint  tenants  or  tenants  in  common 
alone  brings  an  action  against  a  stranger,  he  can  recover  only  the 
value  of  his  share.  So,  if  the  plaintiff,  though  solely  entitled  to  the 
possession  of  the  thing  converted,  is  entitled  to  an  interest  limited 
in  duration,  he  can  only  recover  damages  proportionate  to  such 
limited  interest,  in  an  action  against  the  person  entitled  to  the  resi- 
due of  the  property  (though  he  may  recover  the  full  value  in  an 
action  against  a  stranger.)  The  case  of  Brierly  v.  Kendall,  which  my 
lord  has  cited,  is  an  example  of  this   exception.     There,  the  goods 


638  TROVER. 

had  been  assigned  by  the  plaintiff  to  the  defendant  by  a  deed  the 
terms  of  which  operated  as  a  re-demise,  and,  since  the  defendant's 
quasi  estate  in  remainder  was  not  destroyed  or  forfeited  by  his  con- 
version of  the  qnasi  particular  estate,  the  plaintiff,  as  owner  of  that 
estate,  was  only  entitled  to  recover  damages  in  proportion  to  the 
value  of  it. 

With  respect,  however,  to  liens,  the  rule,  I  apprehend  is  well 
established,  that,  if  a  man  having  a  lien  on  goods  abuses  it  by  wrong- 
fully parting  with  them,  the  lien  is  annihilated,  and  the  owner's  right 
to  possession  revives,  and  he  may  recover  their  value  in  damages  in 
an  action  of  trover.  With  reference  to  this  doctrine,  it  may  be  useful 
to  refer  to  Story  on  Bailments.  In  §  325,  that  writer  says  :  "  The 
doctrine  of  the  common  law  now  established  in  England,  after  some 
diversity  of  opinion,  is,  that  a  factor  having  a  lien  on  goods  for  ad- 
vances or  for  a  general  balance,  has  no  right  to  pledge  the  goods, 
and  that,  if  he  does  pledge  them,  he  conveys  no  title  to  the  pledgee. 
The  effect  of  this  doctrine  is,  in  England,  to  deny  to  the  pledgee  any 
right  in  such  a  case  to  retain  the  goods  even  for  the  advances  or  bal- 
ance due  to  the  factor.  In  short,  the  transfer  is  deemed  wholly  tor- 
tious ;  so  that  the  principal  may  sue  for  and  recover  the  pledge, 
without  making  any  allowance  or  deduction  whatever  for  the  debts 
due  by  him  to  the  factor."  After  stating  that  the  English  legisla- 
ture had  at  length  interfered,  the  learned  author  continues,  in  §  326, 
— "  In  America,  the  general  doctrine  that  a  fact  or  cannot  pledge  the 
goods  of  his  principal,  has  been  repeatedly  recognized.  But  it  does 
not  appear  as  yet  to  have  been  carried  to  the  extent  of  declaring  the 
pledge  altogether  a  tortious  proceeding,  so  that  the  title  is  not 
good  in  the  pledgee  even  to  the  extent  of  the  lien  of  the  factor, 
or  so  that  the  principal  may  maintain  an  action  against  the  pledgee 
without  discharging  the  lien,  or  at  least  giving  the  pledgee  a  right  to 
recover  the  amount  of  the  lien  in  the  damages."  But,  in  the  6th 
edition,  by  Mr.  Bennett,  it  is  added, — "  Later  decisions  have,  how- 
ever, fully  settled  the  law,  that  a  pledge  by  a  factor  of  his  principal's 
goods  is  wholly  tortious,  and  the  owner  may  recover  the  whole  value 
of  the  pledgee,  without  any  deduction  or  recoupment  for  his  claim 
against  the  factor."  And  I  may  mention  that  I  have  reason  to  be- 
lieve this  rule  as  to  liens  was  acted  upon  a  few  days  ago  in  the  Court 
of  Queen's  Bench  (Siebel  v.  Springfield,  9  Law  T.  N.  S.  325). 

But  it  is  said  that  the  maintenance  of  such  a  rule  in  respect  of 
pledges  is  inconsistent  with  Chinery  v.  Yiall,  mentioned  by  my  lord. 
It  seems  to  me,  however,  that  the  decision  of  that  case  does  not  in- 
terfere with  the  general  rule  as  to  damages  in  trover,  but  only  estab- 


JOHNSON  v.    STEAR.  639 

lishes  a  further  exception  in  the  peculiar  and  somewhat  anomalous 
case  of  an  unpaid  vendor,  whose  right  in  all  cases  has  been  deemed 
to  exceed  a  lien   (see  Blackburn  on  Contracts,  p.  320).     I  cannot, 
however,  think,  that  this  exception  can  be  properly  extended  to  the 
case  of  a  pledgee.     An  unpaid  vendor  has  rights  independent  of  and 
antecedent  to  his  lien  for  the  purchase-money.     But  the  property  of 
a  pledgee  is  a  mere  creature  of  the  transaction  of  bailment ;  and,  if 
the  bailment  is  terminated,  must  surely  perish  with  it.    Accordingly, 
it  is  said  in  Story  on  Bailments,  §  327, — "  It  has  been  intimated  that 
there  is,  or  may  be,  a  distinction  favorable  to  the  pledgee,  which 
does  not  apply,  or  may  not  apply,  to  a  factor,  since  the  latter  has  but 
a  lien,  whereas  the  former  has  a  special  property  in  the  goods.     It  is 
not  very  easy  to  point  out  any  substantial  distinction  between  the 
case  of  a  pledgee  and  the  case  of  a  factor.     The  latter  holds  the 
goods  of  his  principal  as  a  security  and  pledge  for  his  advances  and 
other  dues.     He  has  a  special  property  in  them,  and   may  main- 
tain an  action  for  any  violation  of  this  possession,  either  by  the 
principal  or  by  a  stranger.     And  he  is  generally  treated,  in  judicial 
discussions,  as  in  the  condition  of  a  pledgee."     Again,  in  §  299, — 
"  As  possession  is  necessary  to  complete  the  title  by  pledge,  so,  by 
the  common  law,  the  positive  loss  or  the  delivery  back  of  the  pos- 
session of  the  thing  with  the  consent  of  the  pledgee,  terminates  his 
title."     And,  further,  in  the  same  section, — "  If  the  pledgee  volun- 
tarily, by  his  own  act,  places  the  pledge  beyond  his  own  power,  as,  by 
agreeing  that  it  may  be  attached  at  the  suit  of  a  third  person,  that 
will  amount  to  a  waiver  of  his  pledge  "   (see  Whitaker  v.  Sumner, 
20  Pick.  R.  399). 

It  should  seem,  then,  that  the  bailment  in  the  present  case  was 
terminated  by  the  sale  before  the  stipulated  time ;  and,  conse- 
quently, that  the  title  of  the  plaintiff  to  the  goods  became  as  free  as 
if  the  bailment  had  never  taken  place.  If  he  had  brought  an  action 
against  an  innocent  vendee,  the  passage  I  have  already  cited  from 
Story,  §  325,  demonstrates  that  he  might  have  recovered  the  absolute 
value  of  the  goods  as  damages.  Why  should  he  be  in  a  worse  con- 
dition in  respect  of  an  action  against  the  pledgee  who  has  violated 
the  contract  of  pledge. 

The  true  doctrine,  as  it  seems  to  me,  is  that,  whenever  the 
plaintiff  could  have  resumed  the  property,  if  he  could  lay  his  hands 
on  it,  and  could  have  rightfully  held  it  when  recovered  as  the  full 
and  absolute  owner,  he  is  entitled  to  recover  the  value  of  it  as 
damages  in  the  action  of  trover,  which  stands  in  the  place  of  such 
resumption. 


640  TROVER. 

In  the  present  case,  I  think  it  plain  that  the  bailment  having 
been  terminated  by  the  wrongful  sale,  the  plaintiff  might  have  re- 
sumed possession  of  the  goods  freed  from  the  bailment,  and  might 
have  held  them  rightfully  when  so  resumed,  as  the  absolute  owner, 
against  all  the  world.  And  I  therefore  think  that  he  ought  to  re- 
cover the  full  value  of  them  in  this  action. 

Nor  can  I  see  any  injustice  in  the  defendant's  being  thus  remitted 
to  his  unsecured  debt,  because  his  lien  has  been  forfeited  by  his  own 
violation  of  the  conditions  on  which  it  was  created. 

Rule  absolute  to  reduce  the  damages  to  40s. 

Note. — In  an  action  of  trover  brought  by  a  pawnbroker  for  the  illegal  dis- 
traint of  goods  which  had  been  deposited  with  him  in  the  way  of  his  trade,  and 
which  having  been  pledged  more  than  twelve  months,  he,  under  the  provisions 
of  the  pawnbrokers'  act  (39  &  40  Geo.  Ill,  ch.  99,  §  17),  had  a  right  to  sell,  the 
proper  measure  of  damages  was  the  value  of  the  goods,  and  not  merely  that  of 
the  plaintiff's  interest  in  them  (Surre  v.  Leach,  18  C.  B.  N.  S.  479  [1865]). 


Conversion  ;    Immediate  Right  of  Possession  ;    Mitigation. 


COURT   OF     COMMON    PLEAS. 

1864.]      Edmondson  v.  Nuttall  (17  0.  B.  N.   S.  280). 

1.  In  an  action  for  the  conversion  of  goods  of  wliich  the  plaintiff  has  the  immediate  right 

of  possession,  the  true  measure  of  damages  is  the  full  value  of  the  goods  at  the  time 
of  the  conversion. 

2.  The  plaintiff  had  certain  looms  in  the  defendant's  mill,  and  demanded  possession  of 

them,  the  defendant  having  no  right  to  detain  them.  The  defendant,  however,  hav- 
ing obtained  a  judgment  against  the  plaintiff  in  the  county  court,  in  respect  of  which 
he  would  be  entitled  to  issue  execution  against  him  on  the  next  day,  refused  to  de- 
liver them  up  :  and  the  looms  were  taken  in  execution  on  the  following  morning,  and 
sold.  In  au  action  for  this  wrongful  conversion, — Held,  that  the  liability  of  the 
looms  to  the  county  court  process,  and  the  fact  that  by  the  wrongful  seizure  the 
plaintiff's  debt  was  (apparently)  satisfied,  were  not  circumstances  wliich  the  jury 
'   could  take  into  consideration  in  estimating  the  damages. 

This  was  an  action  brought  by  the  plaintiff,  a  weaver,  against  the 
defendant,  the  owner  of  a  mill  at  Coates,  in  the  county  of  Lincoln, 
to  recover  damages  for  the  breach  of  an  agreement  to  provide  power 
for  the  working  of  the  plaintiff's  looms.  There  was  also  a  count  for 
the  conversion  by  the  defendant  of  seven  looms  belonging  to  the 
plaintiff.  To  this  latter  count, — to  which  alone  it  is  necessary  to  ad- 
vert,— the  defendant  pleaded  not  guilty  and  not  possessed. 


EDMONDSON   v.    NUTTALL.  641 

The  cause  was  tried  before  Blackburn,  J.,  at  the  last  spring 
assizes  for  the  county  of  York,  when  the  following  facts  appeared  in 
evidence  :  In  July,  1860,  the  plaintiff  agreed  with  the  defendant  for 
standing  and  power  for  twelve  looms  in  the  defendant's  mill,  for 
which  he  was  to  pay  9f  d.  per  week  for  each  loom.*  After  the  looms 
had  been  at  work  for  about  two  years,  the  plaintiff  being  in  arrear 
with  his  weekly  payments,  and  being  unable  to  pay,  it  was  agreed 
that  the  defendant  should  take  five  of  the  looms  in  satisfa3tion.  The 
plaintiff  becoming  again  in  arrear  for  the  standing  of  his  remaining 
looms,  the  defendant  sued  him  in  the  county  court,  and  on  Friday 
the  29th  of  January,  1864,  obtained  judgment  against  him  for  28?. 
debt,  and  11/.  15s.  costs  ;  and  the  judge  made  an  order  on  the  plaint- 
iff to  pay  these  sums  on  the  following  Monday. 

On  Saturday,  the  30th,  the  plaintiff  went  to  the  mill  for  the  pur- 
pose of  removing  his  looms.  The  defendant  did  not  then  refuse  to 
allow  him  to  take  them  away,  but  desired  him  to  come  on  the  fol- 
lowing Monday.  On  the  Monday,  the  plaintiff  made  a  formal  de- 
mand for  the  looms,  and  the  defendant  said  he  could  not  have  them 
then,  as  he  (the  defendant)  was  going  out ;  and  on  Tuesday  the 
looms  were  seized  (and  subsequently  sold  for  24Z.  17s.)  under  an  ex- 
ecution from  the  county  court  at  the  defendant's  suit.  The  writ  in 
this  action  was  issued  on  the  same  day. 

The  jury  negatived  the  plaintiff's  claim  in  respect  of  the  breach 
of  the  agreement ;  and  the  learned  judge  reported  that  he  was  not 
dissatisfied  with  the  verdict. 

As  to  the  count  for  the  conversion,  the  learned  judge  told  the 
jury  that  there  was  evidence  of  a  conversion  of  the  looms  on  the 
Monday,  which  he  would  leave  to  them  ;  but  that,  the  goods  de- 
tained being  lawfully  seized  on  the  Tuesday,  and  the  plaintiff  having 
had  the  benefit  of  the  proceeds  in  reduction  of  his  debt,  they  might 
take  that  into  account  in  estimating  the  damages.  lie  also  asked 
them  to  say  what  damages  they  found  for  the  conversion,  if  in  point 
of  law  they  were  bound  to  give  the  value  of  the  looms,  without  ref- 
erence to  the  county  court  proceedings. 

The  jury  returned  a  verdict  for  the  plaintiff  on  the  trover  count, 
damages  \d. ;  and  they  found  the  value  of  the  looms  to  be  35/. 

The  learned  judge  thereupon  reserved  leave  to  the  plaintiff  to 
move  to  increase  the  damages  to  35/.  if  the  court  should  be  of 
opinion  that  he  ought  to  have    directed  the   jury  to  find  for  the 

*  See  Hancock  v.  Austin,  14  C.  B.  K  S.  C34  (E.  C.  L.  R.  vol.  108),  where  it  was  held 
that  these  weekly  payments  could  not  be  distrained  for  as  "  rent." 

41 


642  TROVER. 

value  of   the    looms    seized — neither   party  to    appeal  without  the 
leave  of  the  court. 

A  rule  nisi  having  been  obtained,  and  the  motion  thereon  argued, 
the  following  opinions  were  delivered : 

AVilliams,  J. — I  am  of  opinion  that  the  rule  must  be  made  abso- 
lute to  enter  a  verdict  for  the  plaintiff  for  351.  My  brother  Black- 
burn reserved  leave  to  the  plaintiff  to  move  to  that  effect,  if  the 
court  should  be  of  opinion  that  he  ought  to  have  directed  the  jury 
to  find  for  the  value  of  the  looms  seized.  I  am  of  opinion  that  he' 
ousrht  to  have  done  so.  The  substance  of  the  transaction  was  this  : 
The  defendant  committed  a  wrong  by  seizing  goods  of  the  plaintiff 
under  circumstances  which  the  jury  found  to  be  a  conversion  of 
them  to  his  own  use.  It  was  clearly  established  that  the  goods  were 
wrongfully  seized  by  the  defendant,  But  it  is  contended  that  the 
rule,  which  is  beyond  all  question  a  prima  facie  rule,  that  for  an 
act  of  this  sort  the  plaintiff  is  entitled  to  recover  as  damages  the  full 
value  of  the  goods  seized,  ought  not  to  prevail  here,  because  the  de- 
fendant shows  mitigating  circumstances,  viz.,  that,  after  he  had  been 
guilty  of  wrongfully  converting  the  goods  of  the  plaintiff,  he  caused 
them  to  be  applied  so  as  to  be  apparently  a  satisfaction  of  a  judg- 
ment debt  due  to  himself.  In  other  words,  the  defendant  insists, 
that,  because  with  the  proceeds  of  the  plaintiff's  goods  which  he  so< 
wrongfully  converted,  he  has  satisfied  his  own  debt,  that  fact  must 
be  taken  into  consideration  by  the  jury  in  ascertaining  what  measure 
of  damages  the  plaintiff  ought  to  receive  for  the  wrong  done  to  him.. 
I  utterly  decline  to  acknowledge  the  soundness  of  that  argument. 
There  is  nothing  unlawful  in  a  man's  withdrawing  his  goods  for  the 
purpose  of  avoiding  an  impending  execution.  He  may  choose  to 
apply  them  in  satisfaction  of  the  claim  of  another  creditor  ;  and  this 
he  has  a  perfect  right  by  law  to  do,  apart  from  any  question  arising 
upon  the  bankrupt  or  insolvency  law.  It  is  clearly  no  ground  for 
mitigation  of  damages,  for  the  defendant  to  say  that  he  has  chosen 
to  detain  the  plaintiff's  goods  in  order  that  he  may  seize  them  and 
apply  the  proceeds  in  satisfaction  of  his  own  debt.  If  he  might  do 
this,  what  is  there  to  prevent  his  doing  so  for  the  purjtose  of  satis- 
fying his  friend's  execution  which  he  knows  to  be  outstanding  ? 
The  case  has  been  likened  to  that  of  the  redelivery  of  the  thing  con- 
verted, which  is  allowed  to  go  in  mitigation  of  damages ;  as  in  The 
Countess  of  Kutland's  Case,  cited  in  Itolle's  Abridgement,  Action 
sur  Case  (L.)  where  it  is  said,  "  If  a  man  take  my  horse  and  ride  him, 
and  then  redeliver  him  to  me,  still  I  may  have  an  action  against 
him ;  for,  it  is  a  conversion,  and  the  redelivery  is  no  bar  to  the  ac- 


EDMONDSON  v.   NUTTALL.  643 

tion,  and  only  goes  in  mitigation  of  damages."  So,  in  Moon  v. 
Raphael  (2  K  C.  310,  E.  C.  L.  R.  vol.  29>,  where  the  defendant,  a 
sheriff,  who  held  goods  taken  in  execution,  delivered  them  to  the 
plaintiffs,  assignees  of  a  bankrupt,  after  an  action  of  trover  had  been 
commenced  by  them,  and  the  plaintiffs  accepted  them  without  con- 
dition— it  was  held  that  they  could  not  recover  in  the  action  more 
than  nominal  damages ;  at  all  events,  not  without  alleging  special 
damage  in  the  declaration.  The  only  other  case  in  the  books  which 
I  am  aware  of,  in  which  a  redelivery  after  action  brought  has  been 
allowed  to  go  in  mitigation  of  damages,  is  that  of  Williams  v.  Archer 
(5  C.  B.  318,  E.  C.  L.  R  vol.  57).  There,  in  detinue  for  railway 
scrip  which  had  been  delivered  up  to  the  plaintiff,  after  action 
brought,  under  a  judge's  order,  it  was  held  by  the  Exchequer  Cham- 
ber, that,  inasmuch  as  the  scrip  had  already  been  redelivered,  the 
verdict  and  judgment  had  been  properly  confined  to  an  assessment 
of  damages  for  the  detention ;  by  analogy  to  the  case  of  the  redeliv- 
ery of  charters  (17  E.  3,  fo.  45,  b,  pi.  1),  being  rendered  impossible 
by  reason  of  their  having  been  burnt.  Here,  however,  the  goods 
were  never  redelivered  to  the  plaintiff.  He  never  had  power  to  do 
as  he  pleased  with  them.  There  is  no  ground  whatever  for  saying- 
that  the  defendant  ever  restored  to  the  plaintiff  the  control  over  his. 
goods.  Contrary  to  the  plaintiff's  wishes,  he  devoted  them  to  the 
payment  of  his  own  debt.  Then  comes  the  main  argument.  It  was 
said  that,  if  the  plaintiff  were  allowed  to  recover  by  way  of  damages 
in  this  action,  the  full  value  of  the  goods,  the  consequence  will  be 
that  the  goods  will  be  by  virtue  of  the  judgment  and  execution,  re- 
garded as  having  been  the  property  of  the  defendant  from  the  time 
of  the  conversion.  The  obvious  answer  to  that  is  that,  in  the  result, 
the  seizure  of  these  goods  will  not  have  operated  in  satisfaction  of 
so  much  of  the  debt  due  to  the  defendant  upon  his  judgment  in  the 
county  court.  The  execution,  having  been  satisfied  so  far  out  of 
what  turn  out  to  have  been  the  execution  creditor's  own  goods,  is  no 
satisfaction  at  all,  and  the  now  defendant  may  go  to  the  county  court 
and  obtain  leave  to  issue  fresh  process.  There  is  no  ground  for  urg- 
ing what  has  been  done  in  mitigation  of  damages  ;  and  therefore  the 
rule  must  be  made  absolute. 

Willes,  J. — I  am  of  the  same  opinion.  The  measure  of  damages 
for  the  conversion  of  goods  is  prima  facte  their  value.  The  direc- 
tion, therefore,  of  my  brother  Blackburn  to  the  jury  in  this  ci\<v 
was  wrong,  unless  there  were  circumstances  to  make  some  other 
principle  applicable.  Such  circumstances  may  exist  either  where 
the  plaintiff  has  only  a  limited  interest  in  the  goods  at  the  time  of 


644  TROVER. 

the  conversion,  or  where  the  defendant  has  a  lien  upon  them,  or,  as 
in  Brierly  v.  Kendall,  where  the  plaintiff  had  a  defeasible  right  to 
the  possession  of  them.  There  is  nothing  to  make  this  case  an  ex- 
ception from  the  general  rule,  that  the  plaintiff  is  entitled  to  recover 
all  he  has  lost  by  the  defendant's  wrongful  act.  Then,  there  is  the 
case  in  which  the  goods  wrongfully  seized  have  been  afterwards  re- 
turned. The  cases  of  Fouldes  v.  Willoughby  (8  M.  &  "YV.  540)  and 
Harvey  v.  Pocock  (11  M.  &  W.  740),  afford  a  familiar  illustration  of 
the  rule.  The  circumstances  I  have  referred  to,  have,  from  very 
early  times,  been  considered  admissible  in  mitigation  of  damages, 
because  the  plaintiff  has  had  part  satisfaction  for  the  wrong.  If  the 
goods  have  been  restored,  and  the  plaintiff'  has  consented  to  take 
them  back  in  discharge  of  the  claim,  that  might  perhaps  be  pleaded 
by  way  of  accord  and  satisfaction  ;  if  not,  it  would  go  in  reduction 
of  the  amount  of  damages  to  which  the  plaintiff  would  be  entitled 
for  the  wrongful  conversion.  There  is  also  another  case  in  which  a 
mitigation  of  damages  is  allowed  upon  a  very  peculiar  ground — the 
ease  of  one  who,  as  executor  de  son  tort,  has  dealt  with  the  goods  of 
the  deceased  in  a  due  course  of  administration,  and  relies  on  that  as 
an  answer  to  an  action  brought  against  him  by  the  real  executor  ap- 
pointed under  the  will.  There,  the  character  of  the  act  of  wrong  is 
determined  at  the  time  it  is  done.  The  law,  however,  regards  it 
with  so  much  favor  that,  if  the  real  executor  would  have  done  the 
same,  no  recovery  is  allowed  against  the  executor  de  son  tort  in 
respect  of  damages  for  that  part  of  the  estate  which  has  been  so  ap- 
plied. In  all  these  cases,  the  damages  are  allowed  to  be  mitigated, 
either  in  respect  of  the  interest  of  the  plaintiff  in  the  goods  being 
less,  or  of  his  having  already  received  a  partial  satisfaction  of  the 
damages,  or  of  the  act  being  an  act  having  a  rightful  character  in 
respect  of  the  persons  towards  whom  it  is  done  and  in  whose  favor 
it  operates  at  the  time.  But  that  principle  cannot  apply  here,  where 
the  plaintiff  had  an  unqualified  right  at  the  time  to  do  as  he  liked 
with  the  goods,  and  the  act  of  the  defendant  was  wrongful  and  with- 
out any  justification.  I  cannot  help  thinking  that  we  should  be  vio- 
lating the  rule  of  law  which  prohibits  a  man  from  taking  advantage 
of  his  own  wrong,  if  we  were  to  hold  that  the  defendant's  execution 
was  to  have  a  greater  advantage  or  be  more  beneficial  to  him  by  rea- 
son of  his  wrongful  act  in  seizing  and  detaining  the  plaintiff's  goods 
for  the  purpose  of  making  them  amenable  thereto.  There  clearly 
was  nothing  like  a  redelivery  of  the  goods  to  the  plaintiff  here.  So 
long  as  law  shall  endure,  parties  cannot  be  allowed  to  be  judges  or 
bailiffs  in  their  own  cases.      In  all  cases  save  the  exceptional  one  of 


EDM0ND30N   v.   NUTTALL.  645 

a  distress,  the  final  process  of  the  law  is  to  be  executed  by  the  offi- 
cers of  the  law.  A  person  who  has,  in  violation  of  the  law,  taken 
upon  himself  to  seize  goods  which  he  has  no  right  to,  ought  not  to 
be  allowed  to  come  and  ask  for  any  favor  or  encouragement — which 
we  should  in  effect  be  allowing  if  we  held  that  the  subsequent 
seizure  under  the  county  court  process  could  qualify  the  defend- 
ant's wrongful  act  of  detaining  the  goods  on  the  previous  day.  I 
observe  that  my  brother  Blackburn  did  not  express  any  opinion  on 
the  point  of  law  at  the  trial.  He  left  the  matter  to  the  jury,  not 
with  a  direction  such  as  he  would  have  given  them  in  the  case  of  a 
plaintiff  having  but  a  limited  interest  in  the  goods,  or  of  a  defend- 
ant having  a  lien,  or  in  the  case  of  a  redelivery ;  but  he  simply  told 
them  that  they  might  take  the  fact  of  the  plaintiff  having  the  bene- 
fit of  the  proceeds  in  reduction  of  his  debt  into  account  in  estimating 
the  damages.  He  evidently  felt  the  difficulty  of  stating  that  as  a 
proposition  of  law.  To  hold  that  the  defendant  is  entitled  to  have 
the  fact  of  the  goods  being  liable  to  the  county  court  process,  taken 
into  consideration  in  estimating  the  damages  in  this  action,  would  be 
giving  him  a  greater  advantage  than  the  law  would  give  him  in  the 
ordinary  case  of  a  lien,  or  in  the  other  cases  which  I  have  put.  Con- 
sidering what  violence  might  ensue  if  a  creditor  were  allowed,  for 
the  purpose  of  securing  his  debt,  to  resort  to  an  act  unlawful  at  the 
time,  and  to  justify  it  afterwards  by  something  which  did  not  then 
exist,  I  think  we  are  not  warranted  in  allowing  the  inchoate  right  of 
the  defendant  to  have  execution  against  the  goods  in  question,  to 
operate  in  reduction  of  the  damages  which  the  plaintiff  is  entitled  to 
for  the  wrongful  seizure.  There  is  a  case  where  this  doctrine  was 
attempted  to  be  carried  to  a  very  great  length.  I  allude  to  the  case 
of  Gillard  v.  Brittan  (8  M.  &  W.  575).  There,  the  seller  of  goods 
which  had  not  been  paid  for,  retook  them  by  violence  from  the 
buyer,  and,  in  an  action  brought  against  him  by  the  buyer  for 
the  trespass,  insisted  that  the  jury  might,  in  estimating  the  dam- 
ages to  which  the  plaintiff  was  entitled,  allow  the  value  of  the 
goods  so  unpaid  for  in  mitigation.  But  the  Court  of  Exchequer 
took  a  different  view  of  the  matter,  and  held,  for  reasons  which 
are  equally  applicable  here,  that  the  defendant  must  pay  by  way 
of  damages  for  his  unlawful  act,  the  full  value  of  the  goods  seized. 
For  these  reasons,  I  am  of  opinion  that  the  rule  must  be  made  ab- 
solute to  increase  the  damages  to  35£.,  the  value  contingently  as- 
sessed by  the  jury. 

Byles,  J. — I  am  of  the  same  opinion,  though  I  must  confess  I  at 
first  entertained  considerable  doubts.      He  who  wrongfully  converts 


$4:6  TROVER. 

goods  of  another  is  prima  facie  liable  in  damages  to  the  full  value 
of  the  goods  converted  ;  and  it  is  no  answer  to  say  that  the  wrongful 
act  of  the  defendant  has  operated  to  relieve  the  plaintiff  from  a  debt. 
As,  if  a  man  were  to  convert  a  bag  of  money  belonging  to  A.,  it 
would  be  no  answer  for  him  to  say  that  with  the  contents  he  had 
satisfied  a  debt  due  from  A.  to  B.  ;  the  full  value  of  the  money  con- 
verted would  still  be  the  true  measure  of  damages  for  the  defend- 
ant's wrongful  act.  The  present  case  is  very  distinguishable  from 
the  case  of  goods  retaken,  or  of  goods  returned  and  the  restoration 
accepted  in  satisfaction.  Another  difficulty  which  occurred  to  me 
in  the  course  of  the  argument,  was  this  :  The  debt  is  paid,  and  the 
party  has  lost  his  goods — but  he  gets  35Z.  by  the  transaction. 
That,  however,  I  apprehend,  is  not  so.  The  effect  of  the  judg- 
ment and  execution  in  this  action,  is,  that  the  property  is  changed. 
The  result  is,  that  probably  the  defendant  may  now  go  to  the 
county  court  and  get  new  process  upon  his  judgment  there.  I 
am  clearly  of  opinion  that  the  jury  ought  to  have  been  directed  to 
find  for  the  plaintiff  for  the  full  value  of  the  looms  seized. 

Keating,  J.,  had  gone  to  Chambers. 

Rule  discharged. 


Trover  ;  Special  Value. 


COURT    OF    QUEENS    BENCH. 

[1871]         France  v.  Gaudet  (L.  E.  6  Q.  B.  199). 

The  plaintiff  purchased  champagne  lying  at  the  defendant's  wharf  at  14s.  per  dozen,  and 
resold  it  at  24s.  to  the  captain  of  a  ship  about  to  leave  England.  The  defendants 
refused  to  deliver  the  wine,  and  the  plaintiff  was  unable  to  fulfill  bis  contract,  cham- 
pagne of  a  similar  quality  not  being  procurable  in  the  market.  The  defendants  had 
no  knowledge  of  the  sale,  or  of  the  purpose  for  which  the  plaintiff  required  delivery 
of  the  champagne.  In  an  action  for  the  conversion: — Held,  that  the  plaintiff  was 
entitled,  as  damages,  to  the  price  at  which  he  had  sold  the  champagne. 

The  facts  and  course  of  the  trial  are  fully  stated  in  the  judgment. 

The  judgment  of  the  court  (Mellor,  Lush,  and  Hannen,  JJ.) 
was  delivered  by 

Mellor,  J. — In  this  case  the  plaintiff,  who  is  a  wine  merchant, 
had  for  a  customer  a  Captain  Hodder,  whose  ship  was,  on  the  13th 


FRANCE   x.   GAUDET.  04-7 

•of  August  last,  in  the  London  Docks,  and  about  to  sail.  A  few  tlavs 
before,  the  plaintiff  had  obtained  samples  from  a  person  named  Ites- 
tall,  a  wine  broker,  who  had  100  cases  of  champagne  for  sale,  then 
lying  at  the  defendant's  wharf,  for  which  the  price  was  14s.  per 
dozen.  The  plaintiff  had  handed  the  samples  to  Ilodder,  who,  on 
the  13th  of  August,  agreed  to  purchase  the  100  cases  from  the 
plaintiff  at  21s.  per  dozen,  to  be  delivered  next  day,  whereupon  the 
plaintiff  concluded  the  bargain  with  Restall,  and  obtained  from  him 
the  freight  note  and  the  warrants  for  delivery  of  the  wine,  in  order 
that  he  might  obiain  the  same,  so  as  to  enable  him  to  perform  his 
contract  with  Captain  Hodder,  who  was  then  about  to  sail,  and  did 
actually  sail  on  the  17th  of  August.  '  On  the  14th  of  August,  the 
plaintiff"  sent  to  the  defendants'  wharf  and  required  the  delivery  of 
the  wine,  but  the  defendants  refused  to  deliver  the  wine,  on  the 
ground  that  a  stop  had  been  previously  put  upon  the  delivery.  The 
plaintiff*,  being  unable  to  obtain  delivery  of  the  wine,  Captain  Ilodder 
sailed  without  it.  It  was  admitted  that  champagne  of  that  brand  and 
quality  was  not  to  be  obtained  in  the  market,  so  as  to  enable  the 
plaintiff  to  substitute  100  other  cases  of  champagne  for  the  100  cases 
which  he  had  purchased  and  contracted  to  sell  to  Captain  Ilodder. 
The  wine  had  been  delivered  to  the  plaintiff  after  action  brought, 
under  a  judge's  order. 

Upon  this  state  of  facts,  the  counsel  for  the  defendants,  at  the 
trial  before  my  Brother  Lush,  contended  that  as  the  defendants  had 
no  notice  of  the  contract  between  the  plaintiff  and  Ilodder,  they  were 
not  liable  in  trover  for  more  than  the  ordinary  value  of  such  wine  at 
the  time  of  the  conversion  ;  and  that,  inasmuch  as  the  defendants  had 
paid  into  court  a  sam  which  covered  4s.  per  dozen  for  reasonable 
profit,  they  were  entitled  to  have  the  verdict  entered  for  them. 

My  Brother  Lush  reserved  the  question  for  the  consideration  of 
the  court,  directing  a  verdict  for  the  plaintiff  for  30/.,  being  the  dif- 
ference between  the  sum  paid  into  court  and  the  profit  at  which  the 
champagne  had  been,  contracted  to  be  sold  by  the  plaintiff  to  Hodder ; 
with  leave  to  move  to  enter  a  verdict  for  the  defendants.  He  was 
not  requested  to  leave  any  question  to  the  jury  ;  and  it  must  be  taken 
that  if  the  plaintiff  can  recover  any  sum  beyond  that  paid  into  court, 
the  amount  is  to  stand  at  30/. ;  and  it  is  also  to  be  assumed  that,  if  to 
entitle  the  plaintiff  to  recover  that  amount,  notice  of  the  contract 
between  himself  and  Hodder  ought  to  have  been  given  to  the  defend- 
ants, then  the  sum  paid  into  court  was  sufficient  to  satisfy  the  dam- 
ages occasioned  by  the  defendants*  conversion  of  the  Mine. 

LTnder  ordinary  circumstances  the  direction   to   the  jury  would 


648  TROVER. 

simply  be  to  ascertain  the  value  of  the  goods  at  the  time  of  the  con- 
version, and  in  case  the  plaintiff  could,  by  going  into  the  market, 
have  purchased  other  goods  of  the  like  quality  and  description,  the 
price  at  which  that  would  have  been  done  would  be  the  true  measure 
of  damages. 

It  was,  however,  admitted  on  the  trial,  that  in  the  present  case 
that  course  could  not  have  been  pursued,  inasmuch  as  champagne  of 
the  like  quality  and  description  could  not  have  been  purchased  in  the 
market,  so  as  to  enable  the  plaintiff  to  fulfill  his  contract  with  Captain 
Ilodder. 

We  are  of  opinion  that  the  true  rule  is  to  ascertain  the  actual 
value  of  the  goods  at  the  time  of  the  conversion,  and  that  a  "bona  fide 
sale  having  been  made  to  a  solvent  customer  at  24s.  per  dozen,  which 
would  have  been  realized  had  the  plaintiff  been  able  to  obtain  deliv- 
ery from  the  defendants,  the  champagne  had,  owing  to  these  circum- 
stances, acquired  an  actual  value  of  24s.  per  dozen ;  and  we  think 
that,  in  the  present  case,  that  ought  to  be  the  measure  applied,  and 
that  a  jury  would  not  only  have  been  justified  in  assuming  that  to  be 
the  value,  but  ought,  where  the  transaction  was  bona  fide,  to  have 
taken  that  as  the  measure  of  damages,  and  under  the  reservation  at 
the  trial,  we  think  that  we  ought  to  say  that  such  is  the  proper  meas- 
ure of  damages. 

It  was,  however,  objected  at  the  trial,  in  analogy  to  the  cases  of 
special  damage  arising  out  of  the  breach  of  contract,  that  notice  of 
the  special  circumstances  ought  to  have  been  given  to  the  defendants, 
in  order  to  entitle  the  plaintiff  to  recover  anything  beyond  the  ordin- 
ary value  of  the  goods  converted ;  and  Sedgwick  on  Damages  was 
referred  to  and  various  passages  were  cited,  the  substance  of  which 
is  to  be  found  at  page  559,  4th  edition.  The  learned  author  says : 
"  It  appears  to  me  that,  in  principle,  unless  the  plaintiff  has  been  de- 
prived of  some  particular  use  of  his  property,  of  which  the  other 
party  was  apprized,  and  which  he  may  be  thus  said  to  have  directly 
prevented,  the  rights  of  the  parties  are  fixed  at  the  time  of  the  illegal 
act,  be  it  refusal  to  deliver,  or  actual  conversion,  and  that  the  dam- 
ages should  be  estimated  as  at  that  time." 

We  are  not  prepared  to  say  that  there  is  any  anology  between  the 
case  of  contract  alluded  to,  in  which  two  parties  making  a  contract 
for  the  sale  and  delivery  of  a  specific  chattel,  the  vendee  gives  notice 
to  the  vendor  of  the  precise  object  of  the  purchase,  and  a  case  like  the 
present.  In  the  case  of  contract  special  damages,  reasonably  resulting 
from  the  breach  of  it,  may  be  considered  within  the  contemplation  of 
the  parties.     In   case  of  trover,  it  is  not  in  general  special  damage 


FRANCE   v.   GAUDET.  649 

which  can  be  recovered,  but  a  special  value  attached  by  special  cir- 
cumstances to  the  article  converted ;  the  conversion  consists  in  with- 
holding from  another  property  to  the  possession  of  which  he  is  imme- 
diately entitled,  and  the  circumstances  which  affix  the  value  are  then 
determined  ;  no  notice  to  the  wrong-doer  could  then  affect  the  value, 
although  it  might  affect  his  conduct ;  but  upon  what  principle  is  a 
notice  necessary  to  a  man  who  ex  hypothesi  is  a  wrong-doer  %  In 
such  a  case  as  the  present,  the  actual  value  is  fixed  by  circumstances 
at  the  time  of  the  demand,  and  no  notice  of  the  special  circumstances 
could  then  affect  the  actual  value  of  the  goods  withheld  from  their 
rightful  owner,  who  thereby  sustains  "  an  actual  present  loss,"  which 
appears  to  us  to  be  a  convertible  term  with  "  actual  value." 

It  is  not  necessary  to  determine  whether  notice  is  or  is  not  neces- 
sary in  trover,  in  order  to  enable  a  plaintiff  to  recover  special  damage 
which  cannot  form  part  of  the  actual  present  value  of  the  things  con- 
verted, as  in  case  of  the  withholding  of  the  tools  of  a  man's  trade,  in 
which  the  damage  arising  from  the  deprivation  of  his  property  is  not, 
and  apparently  cannot  be  fixed  at  the  time  of  the  conversion  of  the 
tools.  In  that  case,  however,  we  are  inclined  to  think  that  either  ex- 
press notice  must  be  given,  or  arise  out  of  the  circumstances  of  the 
case.  This  point  was  not  determined  in  Bodley  v.  Reynolds  (8  Q.  B. 
779,  approved  in  Wood  o.  Bell,  5  E.  &  B.  772,  25  L.  J.  [Q.  B.]  148)  ; 
but  we  think  that  there  must  have  been  evidence  of  knowledge  on 
the  part  of  the  defendant  that  in  the  nature  of  things  inconvenience 
beyond  the  loss  of  the  tools  must  have  been  occasioned  to  the  plaintiff. 

The  rule  will  be  discharged. 

Rule  discharged. 

Note. —In  an  action  of  trover  for  the  conversion  of  grain,  the  defendant  can- 
not prove  the  value  of  his  own  labor  in  harvesting  and  threshing  the  crops  in 
reduction  of  damages.     Ellis  v.  Wire  [1870],  33  Ind.  127. 


650  REPLEVIN. 


REPLEVIN. 


COMMISSION  OF  APPEALS,   NEW  YORK. 

[1873.]  Allen  v.  Fox  (51  N.  Y.  502). 

In  replevin  for  property  having  a  value  for  a  use,  the  value  of  the  use  may  be  recovered 
in  addition  to  the  value  of  the  property. 

Trover  to  recover  possession  of  a  horse. 

The  horse  was  taken  in  the  action  and  delivered  to  the  plaintiff, 
who  retained  it  until  the  trial.  The  jury  found  the  title  to  the  horse 
to  be  in  the  defendant,  and  assessed  its  value,  at  $175,  in  addition  to 
which  they  found  that  the  defendant  had  received  $75  damages  by  its 
detention.  The  defendant  having  offered  to  prove  the  value  of  the 
use  of  the  horse,  the  plaintiff"  objected  on  the  ground  that  such  value 
was  not  the  proper  measure  of  damages.  This  objection  having  been 
overruled,  the  evidence  was  given  and  the  plaintiff  excepted.  The 
court  ordered  the  exception  to  be  heard  in  the  first  instance  at  the 
general  term.  The  general  term  affirmed  the  previous  ruling,  denied 
a  motion  for  a  new  trial,  and  directed  judgment  for  defendant,  where- 
upon the  plaintiff'  took  this  appeal. 

Earl,  C. — The  proper  rule  of  damages  to  be  applied  to  cases,  as 
they  arise  in  the  courts,  has  always  been  a  fruitful  subject  of  discus- 
sion and  difference  among  judges  and  jurists.  In  actions  of  tort  the 
aim  of  the  law  is  to  give  the  injured  party  a  full  indemnity  and  no 
more,  unless  the  injury  has  been  willful  or  malicious.  Remote,  con- 
tingent and  uncertain  damages  are  excluded,  but  it  is  not  always  easy 
to  determine  what  damages  ought  to  be  classified  as  such.  It  has 
been  the  aim  of  the  courts  to  lay  down  rules  upon  the  subject,  which 
shall  be  general,  certain  and  practicable.  But  it  is  scarcely  possible 
to  lay  down  any  general  rule  that  does  not  call  for  exceptions.  In 
actions  of  trover,  in  cases  where  there  has  been  no  increase  in  the 
value  of  the  property  converted  intermediate  the  conversion  and  the 
time  of  the  trial,  the  measure  of  damages  is  the  value  at  the  time 
of  the  conversion,  and  interest  thereon  to  the  time  of  the  trial,  and 
it  would  have  to  be  a  very  special  case  that  would  authorize  greater 
damages.     The  claim  here  is,  that  the  same  rule  applies  in  an  action 


ALLEN   v.   FOX.  651 

of  replevin,  and  I  shall  endeavor  to  show  that  it  does  not  apply  in  all 
cases,  and  that  this  case  is  one  of  a  class  to  which  it  cannot  be 
applied. 

The  very  nature  of  the  two  kinds  of  action  shows  that  the  same 
rule  of  damages  should  not  be  inflexibly  applied  in  each. 

In  the  action  of  trover,  the  plaintiff  does  not  seek  to  recover  his 
property,  but  its  value  as  a  substitute  for  the  property.  He  abandons 
the  property  to  the  defendant,  preferring  to  pursue  him  for  its  value. 
He  makes  a  kind  of  forced  sale  of  it,  without  any  expectation  or 
intention  of  retaking  it.  Hence,  in  such  cases,  he  can  be  expected  at 
once  to  go  into  the  market  and  supply  himself  with  the  same  prop- 
erty at  its  market  value  if  he  desires  it.  But  in  the  action  of  replevin, 
the  plaintiff  seeks  to  recover  the  property,  and  is  in  all  stages  of  the 
case  to  final  judgment  in  pursuit  of  that,  and  not  its  value.  And 
during  the  whole  time  the  defendant  may  have  the  possession  and 
the  use  (if  it  can  be  used)  of  his  property.  At  the  termination  of 
the  suit  it  is  not  optional  with  him  to  take  the  property  or  its  value. 
If  the  defendant  has  the  property,  and  will  permit  him  to  take  it,  he 
is  obliged  to  take  it  (Code,  §  277  ;  Dwight  v.  Enos,  9  1ST.  Y.  470; 
Fitzhugh  v.  Wiman,  9  id.  559).  Hence  the  plaintiff  cannot  always 
be  expected  or  required,  in  such  cases,  to  go  into  the  market  and  sup- 
ply himself  with  the  same  kind  of  property  at  its  market  value. 
Suppose  the  controversy  be  about  a  canal  boat  or  a  carriage,  or  an 
expensive  machine.  If  the  plaintiff*  should  go  into  market  and  buy 
another,  at  the  end  of  the  litigation,  in  case  of  success,  he  would  have 
on  hand  duplicates  of  the  article,  and  would  thus  be  subjected  to 
further  loss  and  inconvenience.  These  observations  are  made  simply 
to  show  that  there  is  nothing  in  the  nature  of  the  two  actions  requir- 
ing the  application  of  the  same  rule  of  damages. 

In  the  action  of  replevin,  under  the  Code,  the  jury  are  required 
to  assess  the  value  of  the  property,  and  damages  for  its  detention. 
The  value  here  intended  is  the  value  at  the  time  of  the  trial.  In  case 
the  prevailing  party  can  obtain  a  delivery  of  the  property,  he  must 
take  it  as  it  then  is  ;  if  he  cannot  obtain  such  delivery,  then  the 
value  is  intended  as  a  substitute  and  precise  equivalent  of  the  prop- 
erty. The  damages  for  detention  are  the  same,  whether  the  party 
recover  the  property  or  its  value.  Now,  suppose  the  property  has 
been  badly  depreciated,  intermediate  the  wrongful  taking  and  the 
trial,  still  the  prevailing  party  is  obliged  to  take  it  if  he  can  obtain  it, 
and  he  is  indemnified  for  the  depreciation  by  the  damages  assessed  to 
him.  But  he  recovers  the  same  damages  if  he  cannot  obtain  the 
property  and  is  obliged   to  take  its  value,  and  then   if  the  value  Ins 


652  REPLEVIN. 

been  assessed  as  it  existed  at  the  time  of  the  taking,  before  the  de- 
preciation,  it  is  clear  that  he  gets  more  than  an  indemnity.  Hence 
there  is  no  way  of  administering  this  law,  except  by  holding  that  the 
.value  required  to  be  assessed  by  the  jury  means  the  value  at  the  time 
of  the  trial  (Young  v.  Willet,  8  Bosw.  486  ;  Brewster  v.  Silliman,  38 
K  Y.  423,  429). 

With  this  rule  in  view,  what  should  be  the  measure  of  damages  for 
the  detention  ?  In  many  cases  interest  on  the  value  from  the  time  of 
the  wrongful  taking  would  be  a  proper  measure.  It  would  be  gener- 
ally in  all  cases  where  the  property  detained  was  merchandise  kept 
for  sale,  grain  and  all  other  articles  of  property  useful  only  for  sale 
or  consumption.  In  such  cases,  if  the  owner  recover  the  interest  on 
the  value  of  his  property  from  the  time  he  was  deprived  of  it,  he 
will  generally  have  a  complete  indemnity  unless  the  property  has  de- 
preciated in  value,  in  which  case  the  depreciation  must  be  added  to 
the  interest  on  the  value,  taken  as  it  was  before  the  depreciation,  and 
the  two  items  will  furnish  the  amount  of  the  damage.  This  damage, 
together  with  the  property  or  its  value  at  the  time  of  the  trial,  will 
give  the  owner  as  complete  indemnity  as  the  law  is  generally  able  to 
give  any  person  seeking  redress  for  a  wrong.  But  the  same  measure 
of  damages  would  not  generally  furnish  the  owner  an  indemnity  in 
case  the  property  claimed  had  a  value  for  use,  or,  in  other  words,  a 
usable  value,  such  as  horses,  cows,  carriages  and  boats.  In  such  case 
the  direct  damage  which  the  owner  suffers  is  the  loss  of  the  use,  and 
the  value  of  the  use  should  be  the  measure  of  damage.  There  may 
be  cases  in  which  greater  damage  would  be  proper  for  exceptional 
reasons  growing  out  of  the  manner  in  wxhich  the  wrong-doer  has  used 
and  treated  the  property  while  in  his  possession.  Suppose  the  plaint- 
iff had  taken  the  defendant's  boat,  worth  $2,000,  and  kept  it  a  whole 
year  before  it  was  ordered,  as  the  result  of  the  action,  to  be  returned 
to  the  defendant,  would  the  interest  be  a  fair  compensation  to  the 
defendant  for  the  loss  of  the  use  of  his  boat  ?  Instead  of  a  boat, 
suppose  it  had  been  a  carriage,  worth  $1,000,  would  the  interest  be  a 
sufficient  allowance  for  the  use  of  the  carriage  a  whole  year  ?  The 
same  supposition  may  be  made  as  to  any  article  of  personal  property 
having  a  usable  value.  There  would  be  very  few  cases  where  the 
interest  would  give  the  owner  a  fair  or  adequate  indemnity,  and  thus 
two  of  the  fundamental  rules  of  damages  would  be  violated  :  The 
owner  would  not  be  completely  or  fully  indemnified  for  the  loss  of 
the  use  of  his  property,  and  the  wrong-doer  who  had  the  use  of  it 
would  make  a  profit  out  of  his  own  wrong,  which  the  law  does  not 
tolerate.     This  case  illustrates  the  injustice  of  the  rule  contended  for 


ALLEN   v.    FOX.  653 

hy  the  plaintiff  as  well  as  any.  The  jury  found  the  value  of  the 
horse  to  be  $175  and  the  value  of  the  use  to  be  seventy-five  dollars 
for  one  year  and  three  months.  For  the  same  period  the  interest 
would  have  been  $15.31,  and  if  that  had  been  taken  as  the  measure 
of  damages,  the  owner  would  have  lost  about  sixty  dollars  and  the 
wrong-doer  would  have  made  that  much  profit  out  of  his  wrong.  A 
rule  of  damage  which  works  out  such  a  result  cannot  have  a  basis  of 
principle  or  justice  to  stand  upon.  But  one  case  has  been  brought  to 
my  attention  which  is  apparently  in  conflict  with  the  rule,  as  I  claim 
it  to  be,  and  that  is  the  case  of  Twinam  v.  Swart  (4  Lansing,  263),  an 
action  of  replevin  for  a  horse.  Much  of  what  the  learned  judge  who 
wrote  the  opinion  of  the  court  says  upon  the  subject  of  damages  is 
in  conflict  with  the  views  above  expressed,  and  yet  the  case  was  prob- 
ably decided  right,  as  there  the  judge  at  the  circuit  laid  down  the 
rule  that  the  owner  should  recover  the  actual  damages  for  the  deten- 
tion and  the  use  of  the  horse  besides,  and  in  this  clearly  erred.  In 
Brizsee  v.  Maybee  (21  Wend.  141),  the  action  was  replevin  to  recover 
200  saw  logs,  and  it  was  held  that  the  damage  for  the  detention  was 
interest  on  the  value.  In  Suydam  v.  Jenkins  (3  Sand.  S.  C.  R.  611), 
the  action  was  to  recover  500  barrels  of  flour,  and  substantially  the 
same  rule  was  laid  down.  In  neither  case  did  the  property  have  any 
usable  value,  and  hence  they  are  not  in  conflict  with  the  views  above 
expressed.  In  Rowley  v.  Gibbs  (14  Johns.  385),  and  Young  v.  Wil- 
let  (8  Bosw.  486),  the  actions  were  replevin  to  recover  articles  of 
merchandise,  and  it  was  held  that  the  owner  in  each  case  could 
recover  as  damages  for  the  detention  the  interest  on  the  value,  as  well 
as  the  depreciation  of  the  merchandise.  In  Brewster  v.  Silliman  (38 
X.  Y.  423),  the  action  was  to  recover  the  possession  of  two  canal 
boats.  The  defendants  caused  them  to  be  seized  by  virtue  of  an  at- 
tachment. The  plaintiff  replevied  them,  and  the  defendant  gave  the 
requisite  undertaking,  and  procured  a  return  of  the'property  to  them, 
and  they  retained  it  over  six  years,  until  the  trial,  when  the  referee 
found  the  title  of  the  property  in  the  plaintiff  and  gave  judgment 
for  its  return  to  him,  and  awarded  to  him  only  the  interest  on  the 
value  for  his  damages  for  the  detention  during  the  whole  time.  The 
defendants  appealed,  and  the  measure  of  damages  was  in  no  way 
involved  in  the  case  on  the  appeal.  The  owner  was  deprived  of  his 
boats  for  six  years,  and  at  the  end  of  that  time  was  obliged  to  take 
them  back  with  only  the  interest  on  their  value  for  their  use.  The 
wrong-doers  in  that  case  certainly  profited  largely  by  their  wrong, 
and  no  case  could  more  strikingly  illustrate  the  absurd  injustice 
which  could  be  worked  out  by  the  rule  contended  for  by  the  plaintiff 
in  this  case. 


654  SHERIFF. 

I  have  found  no  case,  unless  it  be  the  case  in  4  Lansing,  where  it 
has  been  held  that  the  value  of  the  use  may  nut  be  recovered  as  dam- 
ages for  the  detention  in  case  the  property  has  (what  I  have  for  brev- 
ity called)  a  usable  value.  That  it  could  be  was  held  in  Clapp  v. 
Walter  (2  Texas,  ISO) ;  Darbey  v.  Cassaway  (2  Harris  &  J.,  413)  ;  But- 
ler v.  JSTehring  (15  111.  488) ;   McGavick  v.  Chamberlain  (20  id.  219). 

It  follows  that  the  rule  of  damages  adopted  below  was  right,  and 
that  the  judgment  must  be  affirmed  with  costs. 

All  concur. 

Judgment  affirmed. 


SHERIFF. 

Sheriff;  Escape;   Mitigation. 


SUPREME    COURT,    OHIO. 

[1804.]  Hootman  v.  Shriner  (15  Ohio  St.  43). 

In  an  action  on  the  case  (or  under  the  code)  against  a  sheriff  for  the  escape  of  a  prisoner 
in  custody  under  final  process,  it  is  competent  for  the  defendant  to  give  in  evidence, 
in  mitigation  of  damages,  the  fact  that  the  prisoner,  at  the  time  of  escape,  was  either 
insolvent,  or  wholly  destitute  of  property ;  and  this,  whether  the  escape  were  vol- 
untary or  negligent. 

Error  to  the  Court  of  Common  Pleas  of  Ashland  county.  Re- 
served in  the  District  Court. 

At  the  February  term,  1857,  of  the  Court  of  Common  Pleas  of 
Ashland  county,  in  a  proceeding  against  one  Simon  Courts,  under 
the  act  of  February  2,  1824,  "  for  the  maintenance  and  support  of 
illegitimate  children,"  Mary  Shriner,  defendant  in  error,  obtained  an 
order  of  court  that  Courts,  who  was  adjudged  the  reputed  father  of 
her  bastard  child,  should  stand  charged  with  its  maintenance,  in  the 
sum  of  two  hundred  dollars,  and  pay  costs  of  prosecution,  and  give 
security  for  the  performance  of  the  order.  This  he  neglected  and 
refused  to  do,  and,  in  consequence,  was  committed  to  the  jail  of  the 
county,  in  the  custody  of  Hootman,  the  plaintiff  in  error,  who  was 
then  sheriff,  there  to  remain  until  the  order  of  the  court  was  com- 
plied with.  The  plaintiff  in  error  took  Courts  into  his  custody  and 
committed  him  to  jail,  and  there  kept  him  six  days  under  the  order 
of  the  court,  and  then  discharged  him  from  custody.     For  so  doing, 


HOOTMAN   v.    SHRINER.  65& 

the  defendant  in  error  commenced  an  action  against  the  plaintiff  in 
error,  in  the  Court  of  Common  Pleas  of  Ashland  county. 

To  the  action  the  plaintiff  in  error  answered  that  when  Courts 
was  committed  to  jail,  he,  as  sheriff,  requested  the  defendant  in  er- 
ror to  furnish  him  money  for  the  support  and  sustenance  of  Courts 
while  in  jail,  and  that  she  then,  and  thereafter  for  the  whole  six  days, 
refused  to  comply  with  that  request ;  and  that,  therefore,  Courts 
was  discharged  from  custody. 

To  this  answer  a  demurrer  was  filed  and  sustained,  and  exception 
taken. 

At  the  trial  to  the  court,  in  mitigation  of  damages,  the  plaintiff 
in  error  offered  a  witness  to  prove  that  when  Courts  was  committed 
to  jail  and  discharged  therefrom,  he  was  insolvent,  and  had  no  prop- 
erty of  any  kind.  The  court  rejected  this  testimony,  on  the  objec- 
tion of  the  defendant  in  error,  and  gave  judgment  in  her  favor  for 
$2S2  56  damages.  The  plaintiff  in  error  excepted,  and  filed  a  pe- 
tition in  error  in  the  District  Court  to  reverse  the  judgment,  insist- 
ing that  the  Common  Pleas  erred  : 

1.  In  sustaining  the  demurrer  to  his  answer. 

2.  In  rejecting  said  testimony. 

The  cause  was  reserved  to  this  court  for  decision. 

Brinkerhoff,  C.  J.,  delivering  the  opinion  of  the  court,  held 
that  the  court  below  did  not  err  in  sustaining  the  demurrer  to  the 
answer.     The  remainder  of  the  opinion  is  as  follows  : 

The  only  remaining  question  in  the  case  is,  whether  the  court  be- 
low erred  in  excluding  testimony  offered  on  the  trial  in  mitigation  of 
damages,  to  the  effect  that  the  prisoner,  at  the  time  when  he  was 
committed  to  jail  and  discharged  therefrom  by  the  sheriff,  was  in- 
solvent and  had  no  property  of  any  kind. 

Formerly,  in  England,  an  action  of  debt  was  given,  by  statute,  to 
persons  injured  by  the  escape  of  debtors  in  execution.  And  this  is, 
perhaps,  still  the  case  in  some  of  the  States  of  our  Union.  Under 
the  inflexible  provisions  of  these  statutes,  it  seems  that  the  amount 
of  the  debt  was  the  sole  measure  of  the  amount  recoverable  in  an  ac- 
tion of  debt  for  an  escape.  But  in  this  State  we  have  never  had  any 
such  statute,  and  the  matter  remains  as  at  common  law.  The  only 
reported  case  in  this  State,  bearing  on  the  point,  which  I  have  been 
able  to  find,  is  that  of  Richardson  v.  Spencer  (0  Ohio  Rep.  13), 
where  it  was  held,  that  in  an  action  on  the  case  for  an  escape  on 
final  process,  it  is  competent  for  the  defendant  to  prove,  in  mitiga- 
tion of  damages,  that  the  defendant  had  no  property.  In  that  ease 
the  escape  was  involuntary,  or  at  most  negligent,  on  the  part  of  the 


656  SHERIFF. 

sheriff  ;  and  the  court  intimate  that  the  rule  of  damages  might  be 
different  where  the  escape  was  voluntary ;  but  that  question  was  not 
before  the  court,  and  was  not,  therefore,  and  could  not  be  authorita- 
tively passed  on.  And  the  adjudged  cases  do  not  establish  such  a 
distinction.  And  although  the  rules  of  damages,  in  actions  on  the 
case  for  escape,  especially  as  relating  to  the  burden  of  proof,  still  ap- 
pear to  be  somewhat  afloat  in  England,  yet,  in  this  country,  the  fol- 
lowing rules  seem  now  to  be  settled  by  the  preponderating  weight 
of  authority : 

1.  On  proving  the  judgment,  arrest  and  escape,  the  plaintiff  is, 
prima  facie,  entitled  to  recover  the  whole  amount  of  his  debt. 

2.  To  reduce  the  recovery  below  the  amount  of  the  debt  due 
from  the  escaping  prisoner,  the  onus  probandi  rests  upon  the  de- 
fendant. 

3.  For  this  purpose  the  defendant  may  not  show  that  the  amount 
of  the  debt  is  still  capable  of  being  collected  from  the  escaped  pris- 
oner ;  but  may  show  his  partial  or  total  insolvency  or  pecuniary 
worthlessness  at  the  time  of  the  escape. 

4.  That  on  proving  judgment,  arrest  and  escape,  the  plaintiff,  in 
all  cases,  is  entitled  to  recover  at  least  nominal  damages. 

5.  Where  the  jury  find  the  escape  to  have  been  not  only  voluntary 
on  the  part  of  the  officer,  but  that,  in  permitting  the  same,  he  was 
actuated  by  fraud,  malice,  or  corruption,  they  are  not  restricted  to 
the  amount  of  pecuniary  injury  actually  sustained,  and  may  include 
•reasonable  exemplary  damages  ;  but,  with  this  exception,  where  evi- 
dence in  mitigation  is  given,  the  actual  injury  sustained,  is  the  proper 
measure  of  recovery. 

For  error  in  excluding  the  evidence  offered  in  mitigation  of  dam- 
ages, the  judgment  of  the  Court  of  Common  Pleas  is  reversed  and 
cause  remanded. 

Scott,  Ranney,  Wilder  and  White,  JJ.,  concurred. 


"WHITE   v.    MOSELET.  657 


TORTS. 

INJURIES  TO  REAL  PROPERTY— CONTINUING  NUISANCE- 
MINING  TRESPASSES— FLOWAGE— INJURIES  TO  PER- 
SONAL  PROPERTY— INJURIES  TO   PERSON. 


Trespass  ;     Loss   of   Profits  ;    Consequential   Damages   for 
Destroying    Dam. 


SUPREME   JUDICIAL    COURT,    MASSACHUSETTS. 

[1829.]  White  v.  Moseley  (8  Pick.  35G). 

The  plaintiffs  being  owners  of  a  close  and  a  mill  thereon,  on  the  north  side  of  a  river,  and 
their  mill  dam-being  rightfully  extended  to  land  on  the  other  side,  which  they  did 
not  own,  the  defendants  crossed  the  river  below  the  plaintiffs'  land  and  destroyed 
a  part  of  the  dam  on  the  south  side,  and  having  affected  their  object,  they  recrossed 
the  river  at  the  same  place  and  went  upon  the  plaintiffs'  close.  It  was  held,  that  the 
destruction  of  the  dam  and  the  entry  upon  the  close  were  distinct  trespasses,  so  that 
a  judgment  in  trespass  quare  el.  fr.  for  the  latter  would  not  be  a  bar  to  a  like  action 
for  the  former. 

Held,  also,  that  in  trespass  quare  el.  fr.  for  the  destruction  of  the  dam,  the  plaintiffs  were 
entitled  to  recover  consequential  damages  for  the  interruption  of  the  use  of  their  mill, 
this  injury  being  set  forth  in  the  declaration. 

This  was  an  action  of  trespass  for  destroying  the  plaintiffs'  mill- 
dam. 

Damages  were  assessed  for  the  cost  of  repairing  the  dam,  and 
also  for  interruption  to  the  use  of  the  mill  or  diminution  of  profits, 
occasioned  by  the  water  flowing  through  the  breach  in  the  dam  and 
by  that  means  falling  too  low  for  the  working  of  the  mill ;  and  it  was 
objected  that  damages  for  this  latter  cause  could  not  be  recovered  in 
this  action. 

Per  Curiam. 

A  question  is  raised  in  regard  to  the  consequential  damages. 
The  interruption  to  the  use  of  the  mill  and  the  diminution  of  the 
plaintiffs'  profits  on  that  account,  were  alleged  in  the  declaration, 
and  proved  at  the  trial ;  and  we  think  this  was  right.  The  plaintiffs 
are  entitled  to  recover  for  all  the  damage  they  suffered  by  reason 
of  the  trespass. 

Judgment  according  to  verdict. 
42 


658  TORTS. 


Continuing  Nuisance  ;    Repeated  Actions. 


COURT    OF    COMMON    PLEAS. 

[1856.]  Battishill  v.  Reed  (18  C.  B.  GOG). 

In  an  action  by  a  reversioner  for  the  removal  of  the  eaves  from  his  house,  and  the  erec- 
tion of  a  building  with  eaves  and  a  gutter  overhanging  his  wall, — evidence  of  dimi- 
nution of  the  saleable  value  of  the  plaintiff's  premises  in  consequence  of  the  nuisance 
was  rejected ;  and,  it  appearing  that  the  cost  of  replacing  the  tiles  which  had  been 
removed  would  not  exceed  30s.,  and  the  defendant  having  paid  40s.  into  court  on 
account  thereof,  the  jury  were  directed  to  find  for  the  defendant,  if  they  thought  the 
sum  paid  in  was  sufficient  to  cover  the  actual  damages  sustained  by  the  plaintiff: 

Held,  that  the  evidence  tendered  was  properly  rejected,  and  the  direction  right, — the  true 
measure  of  damages  in  such  a  case  being,  not  the  diminution  in  the  saleable  value, 
although  the  nuisance  might  be  of  a  permanent  character,  but  such  damages  aa  the 
jury  might  think  sufficient  to  compel  the  defendant  to  abate  the  nuisance. 

The  wall  of  the  plaintiff's  messuage  was  built  on  the  extremity  of 
his  land,  with  a  tiled  roof,  the  eaves  of  which  projected  over  the  de- 
fendant's land  adjoining,  and  the  plaintiff  had  acquired  an  easement 
of  drip  thereon.  The  defendant  erected  a  higher  building  close  to 
the  plaintiff's.  In  so  doing,  he  removed  the  plaintiff's  projecting 
eaves,  and  constructed  his  own  roof  with  eaves  overhanging  the  plaint- 
iff's roof,  bnt  with  a  zinc  gutter  to  intercept  the  drip ;  it  was  proved 
that  the  tiles  removed  might  have  been  replaced  at  a  cost  of  about 
305.  The  defendant  had  paid  40s.  into  court.  On  the  trial,  the 
plaintiff'  offered  evidence  of  permanent  damage  to  his  premises  in  the 
diminution  of  their  saleable  value  by  the  act  complained  of.  The 
evidence  was  excluded  by  the  presiding  judge. 

A  rule  nisi  having  been  granted  to  show  cause  why  the  verdict 
should  not  be  set  aside  and  a  new  trial  had,  on  the  ground  of  the 
misdirection  of  the  judge  with  respect  to  the  measure  of  damages  to 
the  plaintiff's  reversion,  and  argument  had  thereon,  the  following 
opinions  were  delivered : 

Jervis,  Ch.  J. — I  am  of  opinion  that  this  rule  should  be  dis- 
charged, it  is  now  perfectly  settled  that  a  man  may  be  guilty  of  a 
nuisance  in  erecting  or  continuing  a  building  on  the  land  of  another ; 
it  was  so  held  by  the  Court  of  Queen's  Bench  in  Holmes  v.  Wilson 
(10  Ad.  &  E.  508  [E.  C.  L.  E.  vol.  37]),  by  the  Court  of  Exchequer 


BATTISIIILL   v.   REED.  659 

in  Thompson  v.  Gibson  (7  M.  &  "W.  456),  and  by  this  court  in  Bow- 
yer  v.  Cook  (4  C.  B.  236  [E.  C.  L.  E.  vol.  56]).  The  only  question 
for  our  consideration  upon  the  present  occasion  is,  whether  the  evi- 
dence which  was  tendered  on  the  part  of  the  plaintiff  at  the  trial, 
and  rejected  by  my  brother  Crowder,  was  admissible.  The  evidence 
so  rejected  was  evidence  of  the  diminution  in  value  of  the  plaintiff's 
premises  by  the  acts  complained  of.  My  brother  Crowder  rejected 
that  evidence,  because  the  defendant  was  liable  to  another  action  for 
the  continuance  of  the  nuisance.  It  appears  to  me  that  he  was  per- 
fectly right  in  so  doing.  It  was  for  the  jury  to  say  what  damages  the 
plaintitf  was  entitled  to ;  but,  as  a  principle  of  computation,  the  dim- 
inution in  the  saleable  value  of  the  premises  was  not  the  true  cri- 
terion. Every  day  that  the  defendant  continues  the  nuisance,  he- 
renders  himself  liable  to  another  action.  I  think  the  jury  did  right 
to  give,  as  they  generally  do,  nominal  damages  only  in  the  first  ac- 
tion ;  and,  if  the  defendant  persists  in  continuing  the  nuisance,  then 
they  may  give  such  damages  as  may  compel  him  to  abate  it,  but  notr 
as  was  insisted  here,  the  difference  between  the  original  value  of  the 
premises  and  their  present  diminished  value. 

Cresswell,  J. — The  only  question  for  our  consideration  is, 
whether  my  brother  Crowder  was  right  in  rejecting  the  evidence  of 
diminution  in  the  saleable  value  of  the  plaintiff's  premises,  on  the 
supposition  that  they  were  to  remain  in  statu  quo.  I  agree  with  my 
lord  in  thinking  that  he  would  have  done  wrong  if  he  had  admitted 
it.  Formerly,  the  party  grieved  might,  under  such  circumstances  as 
these,  have  resorted  to  a  quod  pennittat  prosternere,  or  an  assize  of 
nuisance.  These  remedies  are  now  taken  away;  and  even  in  Sir  W. 
Blackstone's  time  they  appear  to  have  been  long  disused.  "Both 
these  actions,"  says  that  learned  author  (3  Comm.  222),  "  of  assize  of 
nuisance,  and  of  quod  permittat  prosternere,  are  now  out  of  use,  and 
have  given  way  to  the  action  on  the  case,  in  which  no  judgment  can 
be  had  to  abate  the  nuisance,  but  only  to  recover  damages.  Yet,  as 
therein,  it  is  not  necessary  that  the  freehold  should  be  in  the  plaintiff 
and  defendant  respectively,  as  it  must  be  in  these  real  actions,  but  it 
is  maintainable  by  one  that  hath  possession  only,  against  another  that 
hath  like  possession,  the  process  is  therefore  easier;  and  the  effect 
will  be  much  the  same,  unless  the  man  has  a  very  obstinate  as  well  as 
an  ill  natured  neighbor,  who  had  rather  continue  to  pay  damages  than 
remove  his  nuisance ;  for,  in  such  a  case,  recourse  must  at  last  be  had 
to  the  old  and  sure  remedies,  which  will  effectually  conquer  the  de- 
fendant's perverseness,  by  sending  the  sheriff  with  hh  posse  comitatus, 


660  TORTS. 

or  the  power  of  the  county,  to  level  it."  *     In  the  course  of  the  argu- 
ment, I    suggested  the  case  of  slander  of  title,  which  is  very  analo- 
gous.    In  order  to  sustain  such  an  action,  the  plaintiff  must  allege 
special  damage ;  he  must  aver  and  prove  an  attempt  to  sell,  and  that, 
in  consequence  of  the   speaking  or  writing  the  words,  he  was  pre- 
vented from  selling.     That  was  expressly  held  by  this  court  in  IVIal- 
achy  v.  Soper  (3  N.  C.  371  [E.  C.  L.  R.  vol.  32]) ;  3  Scott,  723  (E.  C. 
L.  R.  vol.  36),  where  Tindal,  Ch.  J.,  in  delivering  the  judgment, 
says, — after  referring  to  the  cases  of  Lowe  v.  Harewood  (Cro.  Car. 
140) ;  Sir  AY.  Jones,  196  ;  Sir  John  Tasburgh  v.  Day  (Cro.  Jac.  484) ; 
Manning  v.  Avery  (3  Keb.  153),  and  Cane  v.  Golding  (Style,  169, 
176), — "  The  next  question  is,  has  there  been  such  a  special  damage 
alleged  in  this  case  as  will  satisfy  the  rule  laid  down  by  the  author- 
ities above  referred  to  ?     The  doctrine  of  the  older  cases  is,  that  the 
plaintiff  ought  to  aver  that  by  the  speaking  he  could  not  sell  or  lease 
(Gerrard  v.  Dickenson,  Cro.  Eliz.  193 ;  Lowe  v.  Harewood,  Cro.  Car. 
140;  Sir  W.  Jones,  196);  and  that  it  will  not  be  sufficient  to  say 
only  that  he  had  an  intent  to  sell,  without  alleging  a  communication 
for  sale"  (Swead  v.  Badley,  1  Roll.  244).     So,  here,  the  consideration 
of  the  subject  might  have  been  very  different  if  the  plaintiff'  had 
alleged  and  proved  an  attempt  to  sell  the  premises,  which  had  failed 
in  consequence  of  the  nuisance.     In  the  absence  of  such  an  allegation 
and  such  proof,  I  am  of  opinion  that  the  learned  judge  was  quite 
right  in  rejecting  the  evidence  which  was  tendered.     The  plaintiff 
had  no  right  to  assume  that  things  would  remain  as  they  are,  notwith- 
standing the  verdict.     There  is  no  doubt,  upon  the  authorities,  that 
an  action  might  be  maintained  for  continuing  the  erection  after  judg- 
ment recovered  in  the  first  action.     If  the  plaintiff  is  to  recover  sub- 
stantial damages  for  the  nuisance  in  the  first  action,  I  do  not  under- 
stand upon  what  ground  it  is  that  he  is  permitted  to  recover  damages 
in  a  second  action.     I  concur  with  my  lord  in  thinking  that  the  rule 
should  be  discharged. 

Williams,  J. — 1  am  entirely  of  the  same  opinion.  If  the  evi- 
dence in  question  had  been  admitted,  it  would  have  formed  part  of 
the  materials  which  the  judge  would  have  had  to  sum  up  in  order  to 
enable  the  jury  to  measure  the  damages  the  plaintiff'  was  entitled  to 
recover.  In  other  words,  he  must  have  told  the  jury  that,  in  esti- 
mating the  damages,  they  might  take  into  consideration  the  diminu- 
tion in  value  of  the  plaintiff's  premises  in  consequence  of  the  nuisance. 
If  he  had  so  done,  that  clearly  would  have  been  a  misdirection.     I 

*  These  remedies  were  abolished  by  the  3  &  4  W.  4,  ch.  27,  §  36. 


BATTISHILL   v.    REED.  661 

do  not  undertake  to  say  whether  or  not  this  case  falls  within  the  prin- 
ciple of  Holmes  v.  Wilson.  Where  an  action  has  been  brought  for 
erecting  and  leaving  a  building  on  the  plain  tiff's  land,  a  fresh  action 
will  lie  for  continuing  it  there,  and  action  after  action  may  be  brought 
until  it  is  removed.  Whether  this  case  falls  within  that  principle  I 
will  not  undertake  to  say.  But,  assuming  that  it  does,  Holmes  v. 
Wilson  has  been  followed  by  Thompson  v.  Gibson ;  *  and  Thompson 
V.  Gibson  and  Bowyer  v.  Cook  have  established  that  fresh  actions 
may  be  brought  as  long  as  the  nuisance  is  continued.  It  clearly 
would  have  been  misdirection  to  have  told  the  jury  that,  in  estimating 
the  damages,  they  might  take  into  consideration  the  diminution  in 
the  value  of  the  plaintiff's  premises,  if  he  might  afterwards  have 
brought  a  fresh  action  from  day  to  day  for  the  continuance  of  the 
nuisance ;  and,  according  to  Shadwell  v.  Hutchinson  (2  B.  &  Ad. 
97  [E.  C.  L.  R.  vol.  22]),  it  seems  that  the  jury  would  be  right 
in  giving  vindictive  damages.  It  is  impossible  that,  after  the 
plaintiff  has  once  recovered  the  full  value,  the  defendant  is  to  be 
liable  to  a  succession  of  actions  for  the  continuance  of  the  nuis- 
ance. I  think  my  brother  Crowder  did  quite  right  in  rejecting  the 
evidence. 

Willes,  J. — I  am  of  the  same  opinion.  It  appears  from  the  note 
of  the  learned  judge  who  tried  the  cause,  that  Mr.  Kar slake  pro- 
posed to  give  evidence  to  show  the  diminished  value  of  the  plaintiff's 
premises  in  consequence  of  the  erectiou  of  the  defendant's  building. 
That  evidence  was  rejected,  because  that  might  be  the  subject  of  an- 
other action.  The  attempt  to  recover  substantial  damages  in  the  first 
instance  is  certainly  inconsistent  with  the  theory  of  the  action.  At 
common  law,  the  freeholder  would  in  a  case  like  this  have  had  an 
assize  of  nuisance.  This  appears  from  Fitzherbert's  Natura  Brevium 
(184  B),  where  it  is  said  that  "a  man  shall  have  an  assize  of  nuisance 
for  building  of  a  house  higher  than  his  house,  and  so  near  his  that 
the  rain  which  falleth  upon  that  house  falleth  upon  the  plaintiffs 
house."  Again,  p.  185  G,  "  And  if  a  man  levy  a  nuisance  unto  the 
house  of  another  who  hath  therein  an  estate  but  for  term  of  years, 
then  he  shall  not  have  an  assize  of  nuisance,  but  an  action  upon  the 
case  against  him,  because  he  hath  no  freehold.  But  yet  it  seemeth 
he  may  enter  and  abate  the  nuisance."  The  common  sense  of  the 
matter  is  also  opposed  to  the  argument  urged  on  the  part  of  the 
plaintiff.  To  hold  that  the  plaintiff  could  recover  a  full  compensation 
for  the  injury  clone  to  his  reversion  in  the  first  action,  when  he  may 

*  Holmes  v.  Wilson  does  not  appear  to  have  been  cited  in  Thompson  v.  Gibson. 


662  TORTS. 

have  repeated  actions  for  the  continuance  of  the  nuisance,  would  be 
manifestly  inconsistent  and  absurd. 
Rule  discharged. 

Note. — It  is  only  where  the  injury  complained  of  is  necessarily  permanent, 
that  a  jury  can  assess  damages  for  such  permanent  injury.  In  other  cases,  suc- 
cessive actions  may  be  brought  as  long  as  the  obstruction  continues.  A  recovery 
in  the  first  action  establishes  the  plaintiff's  right.  Subsequent  actions  are  to  re- 
cover damages  for  a  continuance  of  the  obstruction  (Bare  v.  Hoffman,  79  Penn. 
St.  71).  If  the  nuisance  is  of  a  permanent  character  that  will  continue  without 
chauge  from  any  cause  but  human  labor,  then  the  damage  is  an  original  damage 
and  may  be  at  once  fully  compensated  (Town  of  Troy  v.  Cheshire  Railroad  Co. 
3  Fost.  [N.  H.]  83;  Powers  v.  The  City  of  Council  Bluffs,  45  Iowa,  652). 

The  measure  of  damages  for  a  continuing  nuisance  or  trespass,  for  which  suc- 
cessive actions  may  be  maintained,  is  the  loss  sustained  at  the  time  of  bringing 
the  suit,  and  for  which  a  recovery  has  not  been  had,  and  not  the  diminution  in 
the  value  of  the  estate  (Cumberland  &  Oxford  Canal  v.  Hutchings,  65  Me.  140). 


Case  for  Injury  to  Freehold. 


SUPREME   COURT,    PENNSYLVANIA. 

[1869.]  Seely  v.  Alden  (61  Penu.  St.  302). 

In  general  the  rule  for  the  measure  of  damages  in  tort  is  actual  compensation  for  the 

injury  and  whatever  contains  this  is  proper  evidence. 
Inadvertent  or  unintentional  injuries  unaccompanied  with   violence,   draw  after  them 

only  their  direct  and  immediate  consequences,  not  those  remote   or  speculative  ; 

grossly  negligent  or  malicious  acts  may  be  the  subject  of  larger  damages. 
For  inadvertent  or    unintentional  injuries  unaccompanied  with  violence,  the  damages 

are  merely  compensatory  ;  in  those  grossly  neglgent  or  malicious,  damages  rest  in 

the  sound  discretion  of  the  jury  uninfluenced  by  prejudice  or  passion. 
Damages    for    injuries    to    property    vary    according  to  the  nature  of  the  claimant's 

right. 
The  owner  of  the  freehold  may  recover  for  an  injury  which  permanently  affects  his 

property;  one  having  only  a  possessory  right  may  recover  for  an  injury  to  his  use 

or  enjoyment. 
If  land  be  under  lease,  the  tenant  and  the  owner  could  each  recover  the  amount  of  his 

loss  for  an  ii  jury   which  affects  the  annual  profit  and  also  depreciates  the  value  of 

the  land. 
If   the  owner  be  also  occupier  he  cannot  recover  damages  for  use  and  also  for  perma- 
nent injury. 
In  an   action  by  the  owners  of  a  water-power  against  an  owner  of  a  tannery  higher  up 

the  stream,  for  permitting  tan  to  be  conveyed  into  the  plaintiffs'  pool,  evidence  both 

of  the  value  of  the  land  with  and  without  the  deposit,  and  of  the  cost  of  removing 

the  deposit,  is  admissible. 


SEELY   v.    ALDEN.  663 

The  cost  of  removing  the  deposit  would  be  the  measure  if  it  should  be  less  than  the 

difference  in  the  value  of  the  land  ;    if  greater,  the  difference  of  the  value  would  be 

the  measure. 
If  there  be  different  modes  of  measuring    damages  depending  on  the    circumstances, 

the  evidence  should  be  heard  and  the  jury  instructed  according  to  the  nature  of 

the  case. 
There  were  a  number  of  mills,   <fec,  besides  the   defendant's,  from  which  refuse  matter 

was  carried  into  the  stream.     The  defendant  was  liable  only  for  the  injury  from  tan 

from  his  work. 
Little  Schuylkill  Navigation  Co.  v.  Richards  (7  P.  F.  Smith,  142)  recognized. 

March  10th  and  11th,  1SG9.  Before  Thompson,  C.  J.,  Read, 
Agnew  and  "Williams,  JJ.     Sharswood,  J.,  at  Nisi  Prius. 

Error  to  the  Court  of  Common  Pleas  of  Wayne  county,  No.  186, 
to  January  Term,  1869. 

This  was  an  action  on  the  case,  commenced  December  26th,  1861, 
by  Franklin  A.  Seely,  Henry  M.  Seely  and  G-eorge  D.  Seely  against 
Levi  H.  Alden.  The  plaintiffs  were  owners  in  fee  of  a  water-power 
and  dam  on  the  Lacka waxen  creek,  and  the  defendant  was  the  owner 
and  occupier  of  a  tannery  higher  up  the  stream. 

The  declaration  charged  the  defendant  with  throwing  tan-bark 
into  the  stream,  "  which,  being  carried  down  by  said  stream,  has  been 
deposited  upon  said  lands  and  in  said  mill-pond  of  the  plaintiffs, 
thereby  filling  up  and  obstructing  said  pond,  interfering  with  the 
free  and  beneficial  use  by  said  plaintiffs  of  the  waters  of  the  said 
west  branch  of  the  Lackawaxen,  and  permanently  injuring  the  value 
of  all  said  property  belonging  to  said  plaintiffs,  to  the  damage  of  said 
plaintiffs,"  &c. 

On  the  trial  before  Barrett,  P.  J.,  the  defendant  admitted  that 
he  had  been  in  the  habit  of  discharging  tan-bark  into  the  stream,  and 
that  a  portion  of  it  had  been  deposited  into  the  plaintiffs'  pool.  The 
plaintiff  proposed  to  ask  a  witness  "at  what  he  estimated  the  value 
of  the  property  as  affected  by  the  deposit  as  compared  with  the 
value  of  the  property  without  the  obstruction."  Also,  "  How  much 
it  would  cost  to  remove  the  tan-bark  deposited  in  the  pool  ? "  Also, 
"What  the  whole  extent  of  the  injury  was  in  market  value,  or  other- 
wise, during  and  at  the  expiration  of  the  time  aforesaid,  as  measured 
by  dollars  and  cents  ?  " 

All  these  questions  were  objected  to  by  the  defendant,  rejected  by 
the  court,  and  several  bills  of  exceptions  sealed.  There  was  other  ev- 
idence of  damage  to  his  pool,  &c. 

The  defendant  gave  evidence  that  there  were  a  number  of  other 
mills,  tanneries,  &c,  on  the  stream  above  the  plaintiffs'  dam  from 
which  tan-bark,  shavings,  sawdust,  &c,  are  discharged  into  the 
stream. 


661  TORTS. 

The  plaintiffs  asked  the  court  to  charge,  "that  the  proper- 
measure  of  damages  in  this  case,  is  the  difference  between  what 
the  property  would  have  sold  for  as  affected  by  the  deposit  of 
tan-bark  in  plaintiffs'  dam  and  what  it  would  have  brought  unaf- 
fected by  it." 

The  court  charged : 

"  The  title  in  the  plaintiffs  is  admitted.  It  is  also  admitted  that 
the  defendant  is  the  owner  of  a  tannery ;  and  that  he  has,  since  1853, 
and  up  to  the  commencement  of  this  suit,  been  in  the  habit  of  dis- 
charging into  the  stream  more  or  less  tan-bark,  and  that  a  portion  of 
it  found  a  deposit  in  plaintiffs'  mill-dam.  The  defendant  admits  the 
trespass  and  his  liability  for  nominal  damages. 

"  This  leaves  nothing  to  go  to  the  jury  but  the  question  of  dam- 
ages. They  have  viewed  the  grounds  and  heard  the  evidence.  If 
the  plaintiffs  are  entitled  to  more  than  nominal  damages,  it  is  the  duty 
of  the  jury  to  find  the  amount. 

"  [The  true  measure  of  damages  under  the  law,  is  the  actual 
amount  sustained  by  the  plaintiffs  during  the  years  complained  of. 
The  value  of  the  water-power  during  that  period,  as  it  was,  or  might 
have  been  enjoyed  by  the  plaintiffs,  unaffected  by  the  deposit  of  tan- 
bark,  and  its  value  as  affected  by  it,  is  a  correct  rule  for  estimating 
damages.]  All  the  inconveniences  to  which  the  use  of  the  water- 
power  was  subjected  should  be  considered.  If  it  caused  delay  or 
trouble  in  getting  logs  to  the  mill,  that  is  a  fair  item  to  consider.  If 
it  obstructed  the  gates  or  water- courses,  or  if  it  lessened  the  capacity 
of  the  pool  for  holding  water  or  storing  logs,  it  was  an  injury  to  the 
enjoyment  of  the  property.  If  the  mills  had  to  stop  for  the  purpose 
of  clearing  out  the  deposit,  it  would  cause  delay  and  hindrance,  and 
therefore  form  an  item  in  measuring  damage.  If  there  was  an  annual 
amount  of  damage  done  during  those  years,  you  may  estimate  it  in 
that  way.  [The  plaintiffs  should  be  compensated  for  whatever  incon- 
venience they  were  subjected  to  in  the  enjoyment  of  their  rights  dur- 
ing those  years.]  The  actual  damage  sustained  is  the  true  rule,  and 
should  form  the  basis  for  your  verdict. 

"  [The  value  of  the  real  estate  before  and  after  the  alleged 
injury  cannot  be  considered.  The  difference  in  value  is  not  the 
correct  rule.]  We  have  been  asked  so  to  instruct  you,  but  decline 
to  do  so. 

"  The  plaintiffs  are  entitled  to  your  verdict  for  nominal  dam- 
ages under  any  view  you  may  take  of  the  evidence.  If  actual  dam- 
age has  been  sustained,  they  are  entitled  to  your  verdict  for  that 
amount,  with  interest  upon  the  amount  at  least  from  the  bringing 
of  this  suit." 


SEELY   v.   ALDEN.  665 

The  verdict  was  for  the  plaintiffs,  for  $1,450. 

He  took  a  writ  of  error  and  assigned  for  error, 

1,  2  and  3.  The  rejection  of  their  several  offers  of  evidence. 

4.  Refusing  to  affirm  their  point. 

5,  6  and  7.     The  parts  of  the  charge  included  in  brackets. 
The  opinion  of  the  court  was  delivered  by, 

Agnkw,  J. — In  general  the  rule  for  the  measure  of  damages  in 
cases  of  tort,  may  be  said  to  be  that  which  aims  at  actual  compensa-' 
tion  for  the  injury  ;  and  whatever  ascertains  this  is  proper  evidence 
to  be  submitted  to  the  jury  (McKnight  v.  Itatcliff,  8  Wright,  168  ; 
Douty  et  al.  v.  Bird  et  al.  10  P.  F.  Smith,  48  ;  Forsyth  v.  Palmer,  2 
Harris,  9S ;  Hart  v.  Evans,  8  Barr,  22  ;  Walker  v.  Smith,  1  Wash.  C. 
C.  R.  154 ;  4  Dallas,  206).  There  are  qualifications,  however  ;  as  that 
inadvertent  or  unintentional  injuries,  or  acts  unaccompanied  with 
malice,  draw  after  them  only  their  direct  and  immediate  consequences, 
and  not  those  remote  and  speculative ;  while  grossly  negligent  or  ma- 
licious acts  may  be  the  subject  of  larger  damages.  In  the  former  the 
damages  are  merely  compensatory  ;  but  in  the  latter  they  rest  in  the 
sound  discretion  of  the  jury,  uninfluenced  by  prejudice  or  passion. 
Damages  for  injuries  to  property  vary  also  according  to  the  nature  of 
the  claimant's  right.  The  owner  of  the  freehold  may  undoubtedly 
recover  for  an  injury  which  permanently  affects  or  depreciates  his 
property ;  while  a  tenant,  or  one  having  only  a  possessory  right,  may 
recover  for  an  injury  to  his  use  or  enjoyment  of  it  (Ripka  v.  Sergeant, 
7  W.  &  S.  9  ;  Schnable  v.  Koehler,  4  Casey,  181  ;  Eobb  v.  Mann,  1 
Jones,  305  ;  Williams  v.  Esling,  4  Barr,  486).  The  court  below  erred, 
therefore,  in  confining  the  proof  of  damages  of  the  plaintiffs  to  the 
mere  use  of  the  water.  Being  the  owners  of  the  property,  as  well  as 
in  its  actual  possession  and  use,  they  had  a  right  to  all  the  damages 
flowing  directly  from  the  tort  of  the  defendant.  If,  therefore,  a  per- 
manent injury  was  created  by  the  lodgment  of  the  tan-bark  in  the 
pool  of  their  dam,  which  actually  depreciated  the  property  in  value  as 
a  water-power,  it  must  affect  the  price  or  value  of  the  land  to  which 
it  belonged;  and  why  should  this  not  be  compensated  in  damages? 
It  is  difficult  to  give  a  good  reason  against  it.  The  plaintiffs  in  that 
case  have  lost  just  so  much  in  the  value  of  their  property  by  the  illegal 
act  of  the  defendant.  Compensation  for  the  diminished  enjoyment 
or  use  of  the  property  for  a  certain  number  of  years,  is  no  compensa- 
tion for  the  diminished  value  of  the  estate  itself.  The  profit  of  the 
land  must  not  be  confounded  with  the  land  itself.  If  the  land  were 
under  lease,  an  injury  which  diminished  its  annual  profit  to  the 
tenant,  and  also  depreciated  the  value  of  the  property  itself,  would 
be  the    subject  of    a  double  action,  in    which    the    tenant   and  the 


666  TORTS. 

landlord  would  each  recover  the  amount  of  his  own  loss.  Of 
course  when  an  owner  claims  in  both  capacities,  he  cannot  be  al- 
lowed a  double  compensation  for  the  same  loss  ;  so  that  the  dam- 
ages for  use  must  not  represent  in  any  part  the  damages  for  the  per- 
manent injury.  It  is  the  duty  of  the  court  to  see  that  one  does  not 
overlap  the  other. 

We  think  the  court  erred  also  in  refusing  to  admit  both  methods 
•of  computing  the  permanent  damages,  to  wit,  that  which  measures 
the  damages  by  the  different  values  of  the  land,  with  and  without  the 
deposit ;  and  that  which  measures  them  by  the  cost  of  removing  the 
deposit.  It  is  often  difficult  for  a  court  to  determine  the  true  measure 
until  all  the  evidence  is  in.  It  may  turn  out  that  the  cost  of  remov- 
ing the  deposit,  in  a  certain  case,  would  be  less  than  the  difference  in 
the  value  of  the  land,  and  then  the  cost  of  removal  would  be  the 
proper  measure  of  the  damages  ;  or  it  may  be  that  the  cost  of  removal 
would  be  much  greater  than  the  injury  by  the  deposit,  when  the  true 
measure  would  be  the  difference  in  value  merely.  If  there  be  differ- 
ent modes  of  measuring  the  damages,  depending  on  the  circumstances, 
the  proper  way  is  to  hear  the  evidence,  and  to  instruct  the  jury  after- 
wards according  to  the  nature  of  the  case.  The  argument  of  the  de- 
fendant in  error  is,  that  the  injury  is  only  temporary,  the  tan-bark 
being  light  and  removable  by  freshets.  But  this  assumes  the  fact. 
The  plaintiffs  declared  upon  the  deposit  as  an  injury  to  their  freehold, 
alleged  it  to  be  permanent  in  its  character,  and  offered  evidence  to 
this  effect.  The  fact  was  one  to  be  decided  by  a  jury  ;  but  in  assum- 
ing that  the  injury  was  only  to  the  use  of  the  property  for  a  certain 
period  of  time,  the  court  withdrew  the  fact  of  permanency.  If  the 
deposit  was  of  a  temporary  character,  it  was  the  subject  of  proof,  and 
the  defendant's  right  to  an  instruction  to  the  jury  to  confine  the  dam- 
ages to  the  use  during  its  temporary  existence,  depended  on  the  find- 
ing of  the  fact.  The  extent  of  the  injury  was  also  a  fact  for  the  jury. 
Whether  temporary  or  permanent,  the  defendant  is  liable  only  for 
the  tan-bark  cast  into  the  stream  by  him,  which  found  its  way  into 
aud  lodged  in  the  pool  of  the  dam.  If  others  above,  on  the  stream, 
contributed  to  the  deposit  of  tan-bark  or  other  matter  in  the  pool, 
the  defendant  cannot  be  held  liable  for  their  injury,  but  his  de- 
posit must  be  separated  by  means  of  the  best  proof  the  nature  of 
the  case  affords,  and  his  liability  ascertained  accordingly.  This 
point  has  been  discussed  and  decided  at  January  Term,  1868,  in 
the  case  of  The  Little  Schuylkill  Navigation  and  Railroad  and  Coal 
Co.  v.  Richards'  Adm'r,  from  Schuylkill  county  (7  P.  F.  Smith, 
142. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 


STAFFORD   v.   CITY   OF   PROVIDENCE.  667 


Estimation  of  Value  of  Laxd  taken  for  Municipal  Purposes. 


SUPREME    COURT,    RHODE    ISLAND. 

[1873.]    Stafford  v.  City  of  Providence  (10  R.  I.  507). 

The  water  commissioners  of  the  city  of  Providence  determined  to  make  a  public  improve- 
ment, to  wit,  a  reservoir,  and  took  certain  land  for  that  purpose,  but  none  belonging 
to  the  present  complainants.  After  the  location  of  said  improvement  they  decided  to 
take  more  land,  namely,  that  of  the  complainants  now  in  question.  Held,  that  the  value 
of  complainants'  saitl  land  was  to  be  estimated  as  it  was  at  the  time  it  was  condemned, 
and  not  at  the  time  of  the  location  of  the  improvement. 

Petition  for  a  determination  of  the  value  of  the  lands  of  the  pe- 
titioners, taken  by  the  water  commissioners  of  the  city  of  Providence, 
under  the  provisions  of  chapter  640  of  the  statutes.  The  petition 
alleged  that  the  petitioners  had  not  agreed  with  the  city  or  with  the 
water  commissioners  upon  the  price  to  be  paid  for  their  lands  so 
taken,  and  prayed  that  the  same  might  be  determined  as  provided 
for  by  said  chapter  640  of  the  Statutes.  In  accordance  with  the 
statute,  appraisers  were  appointed  by  the  court,  who  made  an  award 
appraising  the  entire  damages  to  the  lands  of  the  petitioners  at 
twelve  thousand  dollars.  Upon  the  coming  in  of  the  report  both 
the  petitioners  and  the  city  of  Providence  expressed  their  dissatis- 
faction therewith,  and  demanded  a  jury  trial,  which  was  had  at  the 
October  term,  1872,  of  the  Supreme  Court  for  this  county,  before 
Mr.  Justice  Durfee  and  a  jury,  when,  after  a  verdict  rendered  in 
favor  of  the  petitioners  for  $23,053  32,  the  city  of  Providence  al- 
leged exceptions,  and  moved  for  a  new  trial.  The  substance  of  the 
exceptions  is  stated  in  the  opinion  of  the  court. 

Potter,  J. — Two  exceptions  were  taken  in  this  case.  First. 
That  the  evidence  of  Mr.  Bailey  that  he  and  others,  who  had  been 
appointed  to  divide  an  estate,  had  appraised  certain  land  at  three 
times  its  former  value,  because  its  value  had  been  enhanced  by  the 
location  of  a  reservoir  in  its  neighborhood,  was  improperly  admitted. 
The  witness  was  not  offered  in  this  case  as  an  expert  to  given  an 
opinion,  but  merely  to  state  a  fact ;  and  we  think  it  was  within  the 
discretion  of  the  judge  to  admit  it. 

The  second  and  most  important  exception  i-.  that  the  judge  was 
rectuested  to  charge,  "  that  its  fair  market  value  in  cash,  ar  the  time 
it  was  taken,  must  be  paid  to  the  owner  ;  and  the  jury,  in  assessing 


668 


TORTS. 


the  amount,  Lave  no  right  to  consider  or  make  use  of  the  fact  that 
it  has  been  increased  in  value  by  the  proposal  or  construction  of  the 
improvement,"  but  he  declined  to  charge  in  those  words.  The  first 
part  of  the  request  was  substantially  charged  by  the  court.  We 
think  the  latter  clause  of  the  request  objectionable  from  its  am- 
biguity and  want  of  precision.  In  the  present  case  it  is  to  be  re- 
marked that  the  contemplated  improvement  had  been  located  and 
actually  constructed,  or  nearly  so,  before  this  land  was  taken,  and  it 
seems  to  be  assumed  that  this  construction  has  added  to  the  value  of 
the  property  taken  ;  and  the  question  is,  who  is  to  have  the  benefit 
of  this  increase  in  value.  Now  if  the  request  is  to  be  considered  as 
meaning  that  whether  a  part  or  the  whole  of  a  man's  land  is  taken, 
the  jury  are  not  to  consider  at  all  any  increased  value  from  proposed 
improvement,  but  are  to  value  it  as  if  no  such  improvement  had 
ever  been  suggested,  then  the  proposition  is  too  broad  and  unjust  to 
the  land-owner.  The  market  value  of  land  is  made  up  of  a  great 
many  items — its  productiveness,  its  pleasantness,  its  nearness  to 
markets,  mills,  or  even  a  mill  privilege  not  yet  occupied,  &c.  The 
expectation  or  certainty  to  a  reasonable  intent  that  a  highway  or 
railroad  will  be  called  for  by  the  public  interest,  and  that  from  the 
physical  conformation  of  the  country  it  must  follow  a  certain  route, 
adds  an  appreciable  value  to  the  land  along  the  probable  route.  To 
take  an  instance  :  the  knowledge  that  the  western  trade  must  have  a 
route  to  the  Atlantic,  that  the  city  of  Baltimore  would  contend  for 
this  trade,  and  that  the  only  practicable  route  for  a  canal  or  railroad 
to  bring  that  trade  to  Baltimore  was  by  the  way  of  the  narrow  pass 
at  Harper's  Ferry,  would,  for  years  before  such  an  improvement  was 
made,  add  an  appreciable  value  to  all  the  land  near  that  pass,  and 
would  be  taken  into  consideration  by  every  one  who  bought  and 
sold.  This  may  be  an  extreme  case,  because  there  was  only  one  pos- 
sible route,  but  it  is  still  a  fair  illustration  of  what  takes  place  in  a 
less  degree  in  other  localities.  In  purchasing  land  in  our  new  States, 
the  fact  that  before  long  a  railroad  must  be  made,  to  accommodate 
the  business  in  particular  sections,  is  taken  into  consideration  by 
everybody  in  purchasing. 

Says  Judge  Dillon  (Munic.  Corp.  §  487),  the  fair  value  of  the 
property  "  includes,  and  justly  so,  the  full  value  at  the  time  it  is 
taken,  no  matter  what  may  have  caused  that  value,  and  although  it 
may  have  shared  with  other  property  in  the  benefits  of  the  proposed 
improvement." 

Most  of  the  cases  which  discuss  the  subject  of  these  benefits,  or 
that  increase  in  value  which  land  taken  shares  in  common  with  all 


STAFFORD   v.    CITY   OF   PROVIDENCE.  669 

the  land  around  it,  have  related  to  the  question  whether  any  such 
benefit  or  increased  value  shared  be  set  off  against  or  deducted  from 
the  value  of  the  land  taken. 

If  the  request  to  charge  means  only  that  the  jury  are  not  to 
undertake  to  speculate  on  the  future,  and  to  calculate  the  increase 
of  business  or  value  which  might  accrue  to  the  land  taken  from  the 
proposed  improvement,  then  it  would  be  unobjectionable ;  if,  on  the 
other  hand,  it  means  that  the  jury  are  to  exclude  all  consideration  of 
any  increase  of  value,  which  owners  may  have  rightfully  expected 
from  any  agitated  or  future  possible  improvement,  or  from  any  im- 
provement determined  on,  then  it  is  objectionable,  because  it  ex- 
cludes one  of  those  elements  which  enter  into  the  estimate  of  value 
of  land  everywhere.  The  jury,  while,  on  the  one  hand,  they  should 
not  attempt  to  speculate  on  it ;  on  the  other  hand,  should  not  attempt 
to  fix  a  value  irrespective  of  such  proposed  improvement.  In  other 
words,  if  the  probability  of  the  making  of  certain  roads  or  certain 
improvements  has  entered  into  and  made  a  part  of  the  value,  and 
which  a  purchaser  would  have  paid  for  it,  the  jury  should  not  under- 
take to  calculate  that  portion  of  the  value  and  exclude  it. 

"Where  a  part  of  the  land  is  taken,  there  is  no  difficulty  as  to  the 
rule ;  and  where  the  whole  is  taken,  we  think  there  ought  to  be 
none ;  but  the  remarks  we  have  made  may  aid  us  in  deciding  the 
present  case,  the  peculiarity  of  which  is  that  a  public  improvement 
was  determined  on  and  a  quantity  of  land  taken,  but  no  land  belong- 
ing to  the  present  complainants,  and  sometime  afterwards  the  com- 
missioners of  the  water-works  decided  that  it  was  necessary  to  take 
more  land,  viz.,  the  land  now  in  question.  The  question  is,  is  the 
value  to  be  estimated  at  the  time  of  the  location  of  the  works,  or  at 
the  time  the  land  is  condemned  ?  Obviously  the  latter,  otherwise 
this  gross  injustice  would  ensue,  if  the  first  location  had  increased 
the  value  of  the  land  in  the  neighborhood,  and  the  then  owner  sold 
for  this  increased  value,  and  the  land  was  subsequently  condemned, 
the  purchaser  would  lose  the  difference.  Upon  any  principle  of 
justice,  the  person  whose  land  is  taken,  whether  in  whole  or  in  part, 
should  be  no  worse  off  than  his  neighbors  whose  land  is  not  taken, 
otherwise  he  does  not  receive  that  just  compensation  the  Constitu- 
tion provides  for. 

"The  transaction  (says  Judge  Dillon,  §  4ST)  is  a  compulsory 
purchase,  the  compulsion,  however,  coining  from  the  public;  and 
the  amount  to  which  the  owner  is  entitled  is  not  simply  the  value  of 
the  property  at  a  forced  sale,  but  such  sum  as  the  property  is  worth 
in  the  market,  if  persons  desiring  to  purchase  were  found  who  were 


070  TORTS. 

willing  to  pay  its  just  and  full  value  and  no  more."  Same  rule  in 
Somerville,  &c.  R.  R.  Co.  v.  Doughty,  2  Zab.  495. 

But,  says  counsel  for  the  city,  in  effect,  we  have  caused  this  in- 
crease in  the  value  of  this  land,  and  we  should  be  entitled  to  the 
benefit  of  it.  A  man  who  builds  an  expensive  house  on  one  of  a 
number  of  city  lots,  thereby  adds  to  the  marketable  value  of  all  the 
adjoining  lots.  But  he  does  not  do  it  at  'the  request  of  the  owners 
of  those  lots,  or  with  any  special  view  to  benefit  them.  And  if 
afterwards  he  should  desire  to  purchase  one  of  those  adjoining  lots, 
he  could  with  no  justice  claim  any  deduction  for  the  increased  value 
lie  had  given  to  it.  So  here  the  city  improvement  has  probably 
added  to  the  value  of  all  the  neighboring  land.  It  is  a  necessary 
consequence  of  the  improvement.  Why  should  the  owner  of  the 
land  now  taken  be  deprived  of  the  benefit  which  he  has  received 
from  this  increase  of  value,  more  than  the  owners  of  the  other 
neighboring  land  ?  We  must  therefore  conclude  that  in  case  of  land 
taken  subsequently  to  the  erection  of  a  railroad  or  improvement, 
from  a  person,  none  of  whose  land  had  been  taken  before,  the  rule 
must  be  the  value  at  the  time  of  taking,  of  whatever  items  it  might 
be  composed,  the  same  which  other  persons  would  give  for  it  in  the 
market ;  and  in  no  case  are  we  to  consider,  on  the  one  hand,  the 
necessity  of  taking  it,  nor,  on  the  other,  any  attachment  to  the  land 
or  unwillingness  to  sell,  growing  out  of  local  or  family  associations. 

New  trial  denied. 

A  subsequent  application  for  a  re-hearing  was  heard  and  denied. 


Damage  to  Leasehold  ;   Negligent  Repairs  by  Landlord. 


COURT    OF   APPEALS,    MARYLAND. 

[1873.]  McHenry  v.  Mark  (39  Md.  510). 

The  plaintiffs  were  lessees  for  years  of  a  certain  building  and  premises  in  Baltimore, 
which  they  used  as  a  bowling  alley.  The  lease,  which  was  executed  by  the  lessor 
only,  provided  that  the  lessees  should  "  at  their  own  expense,  keep  said  property  in 
repair."  In  January,  1870,  the  proprietor  of  the  lot  adjoining  on  the  east,  gave  no- 
tice to  the  lessor  of  his  intention  to  make  certain  demoliiions  and  excavations  upon 
his  property,  which  were  accordingly  begun  in  March,  1870.  On  the  14th  of  April, 
1870,  this  work  having  so  far  advanced  that  the  east  wall  of  the  bowling  alley  must 
have  fallen  unless  secured,  and  the  plaintiffs  having  done  nothing  to  secure  it,  the 
lessor  obtained  permission  from  them  to  enter  upon  the  premises  and  rebuild  the 
wall,  which  the  plaintiffs  granted  upon  condition  that  the  repairs  should  be  done  in 


McHENRY   v.   MARR.  071 

a  substantial  manner,  and  that  the  rent  should  cease  during  their  progress.  On  the 
3d  of  June,  1870,  the  new  wall,  which  had  just  been  constructed,  fell,  carrying  with  it 
other  portions  of  the  building,  whereupon  the  plaintiffs  abandoned  the  premises  for 
the  residue  of  their  term,  and  sued  the  lessor  in  damages  for  breaking  up  their  busi- 
ness and  rendering  the  property  untenantable.  Upon  appeal  by  the  lessor  from 
judgment  for  the  plaintiffs,  it  was  held: 

1st.  That  the  value  of  the  residue  of  the  term  was  not  an  element  in  the  ascertainment  of 
the  measure  of  damages. 

2d.  That  the  measure  of  damages  was  the  loss  sustained  by  the  plaintiffs  in  consequence 
of  the  negligent  or  unskillful  discharge  bv  the  defendant  of  a  commission  which  he 
had  undertaken  to  perform. 

Appeal  from  the  Circuit  Court  for  Cecil  County. 

The  facts  are  stated  in  the  opinion  of  the  court. 

The  cause  was  argued  before  Bartol,  C.  J.,  Stewart,  Bowie, 
Millek  and  Alyet,  JJ. 

Bowie,  J.,  delivered  the  opinion  of  the  Court. 

The  appellees,  as  co-partners,  claiming  possession  of  a  certain  mes- 
suage and  premises  in  the  city  of  Baltimore,  known  as  the  "  Monu- 
mental Bowling  Alley,"  with  the  appurtenances,  sued  the  appellant  in 
the  Circuit  Court  for  Hartford  county,  and  by  their  narr.  averred, 
that  being  possessed  of  said  messuage,  in  which  before  and  at  the  time 
of  the  committing  of  the  grievances  thereinafter  alleged,  they  carried 
on  a  remunerative  business,  as  proprietors  and  managers  of  the  bowl- 
ing alley  and  public  bar,  then  and  there  kept  open  for  the  patronage 
of  the  public  ;  whilst  being  so  occupied,  the  defendant  requested  per- 
mission of  plaintiffs  to  enter  upon  said  premises  and  secure  the  east 
Avail  of  the  bowling  alley  building,  and  do  other  repairs,  etc.,  in  and 
about  said  building,  then  and  there  being,  viz. :  on  or  about  the  14th 
of  April,  1870,  which  permission  the  plaintiffs  gave  the  defendant, 
with  the  proviso,  that  he  should  exercise  due  care,  and  make  said  re- 
pairs and  alterations  in  a  substantial  and  skillful  manner. 

The  plaintiffs  averred  that  the  defendant  entered  upon  the  premi- 
ses and  made  the  repairs  and  alterations  in  a  wrongful,  negligent  and 
unskillful  manner,  and  omitted  to  use  due  care  and  skill  in  the  con- 
struction of  the  new  wall,  and  in  fact,  did  construct  the  wall,  or  a  por- 
tion thereof,  out  of  improper  and  insufficient  materials,  so  that  about 
the  3d  of  June,  1870,  the  new  wall  constructed  by  the  defendant  gave 
way,  and  fell  down,  and  caused  to  fall  with  it,  a  large  portion  of  said 
bowling  alley  building,  so  as  aforesaid  occupied  and  used  by  the 
plaintiffs  ;  by  reason  of  which  the  plaintiffs  were  necessarily  and  sub- 
stantially evicted  from  said  messuage  and  buildings,  and  were  pre- 
vented and  debarred  from  realizing  the  gains  and  profits  which  they 
would  otherwise  have  made,  amounting  to  five  thousand  dollars. 


€72  TORTS. 

And  the  plaintiffs  further  averred,  that  by  reason  of  the  acts  and 
negligence  of  the  defendant,  their  entire  business  was  broken  up  and 
destroyed,  and  their  custom  and  patronage  prevented,  and  the  use  and 
occupation  of  the  messuage  and  buildings  made  impossible. 

To  which  narr.  the  defendant  pleaded  not  guilty,  and  issue  was 
joined  thereon. 

At  the  trial  of  the  cause,  the  appellees,  plaintiffs  below,  offered 
evidence  to  prove,  they  were  tenants  of  the  defendant  (the  appellant), 
from  the  1st  of  April,  1869,  and  proved  and  offered  in  evidence  an 
agreement  executed  by  the  defendant,  purporting  to  be  made  on  the 
1st  of  April,  1869,  by  the  appellant  of  the  first  part,  and  the  appellees 
of  the  second,  whereby  the  appellant  leased  to  the  appellees,  the 
Monumental  Bowling  Alley,  together  with  the  stable  in  the  rear 
thereof,  from  the  1st  of  April,  1869,  to  the  1st  of  April,  1871,  at  and 
for  the  yearly  rent  of  $3,000,  payable  in  equal  monthly  installments, 
and  the  appellees  covenanted  that  they  would  promptly  pay  said  rent, 
and  that  they  would  at  their  own  expense  keep  said  property  in  re- 
pair, etc.,  and  that  at  the  expiration  of  said  term,  they  would  sur- 
render said  premises,  with  all  repairs,  and  improvements,  that  may 
have  been  made,  and  all  advantages  secured  therefor,  in  good  order, 
unavoidable  wear  and  tear  excepted. 

This  instrument  was  signed  Ramsey  McHenry  [seal]  per  Thos. 
Hill,  but  not  signed  by  the  appellees. 

The  appellees  further  offered  evidence  to  prove  the  premises  were 
in  good  repair  in  January,  1870,  when  Robert  Rennert,  the  pro- 
prietor of  an  adjoining  lot  on  the  east  side,  gave  notice  to  the  de- 
fendant of  his  intention  to  make  certain  improvements  and  excava- 
tions on  his  property,  and  on  or  about  the  15th  of  March,  1870,  com- 
menced said  excavations,  etc.,  and  took  down  his  adjoining  building, 
which  was  attached  to  the  back  building  of  the  demised  premises ; 
that  on  the  14th  of  April,  1870,  Rennert  had  removed  his  adjoining 
building,  and  his  work  had  so  far  progressed,  that  the  east  wall  of  the 
back  building  binding  on  Rennert's,  must  necessarily  have  fallen 
down,  when  Rennert's  improvements  were  completed,  if  nothing 
were  done  to  prevent  it,  and  up  to  that  time,  plaintiffs  had  done 
nothing  to  secure  said  wall  or  prevent  its  falling. 

The  appellees  further  offered  to  prove,  that  the  appellant  by  bis 
agent  Thos.  Hill,  applied  to  them  on  the  11th  of  April,  1870,  for 
permission  to  use  about  ten  feet  along  the  east  wall  of  the  bowling 
saloon,  for  the  purpose  of  securing  at  once  the  east  wall  of  the  bowl- 
ing-alley building  and  proposed  to  make  an  abatement  of  $100  per 
month  from  the  rent,  until  the  part  was  restored — which  proposition 


McHENRT  v.    MARK.  673 

being  declined,  the  appellant  by  said  Hill,  his  agent,  offered  to  abate 
all  the  rent,  from  that  time,  until  the  wall  proposed  to  be  built  should 
be  completed,  and  the  premises  restored  to  plaintiffs  in  good  condi- 
tion, and  the  appellees  gave  him  permission  to  enter  and  occupy  so 
much  of  said  back  building  as  was  covered  by  two  of  the  eight  alleys 
into  which  it  was  divided. 

The  appellees  further  proved  that  a  wall  was  erected  on  said  east 
side  of  the  back  building,  by  men  employed  by  the  appellant ;  that 
said  wall  was  negligently  built,  and  fell  down  on  the  3d  of  June  fol- 
lowing ;  that  they  ceased  to  do  business  for  the  residue  of  the  term, 
and  could  not  have  successfully  carried  it  on,  and  gave  notice  to  their 
sub-tenants  not  to  pay  any  more  rent. 

That  the  wall  was  not  repaired  or  rebuilt  until  after  their  term  had 
expired. 

They  also  offered  evidence  of  written  notice  from  appellant  to 
them,  dated  June  6,  1870,  that  under  the  terms  of  their  agreement 
with  him,  they  were  held  responsible  for  the  repair  of  the  property, 
and  incidental  expenses,  and  requiring  them  to  take  steps  at  once  to 
secure  the  property. 

On  cross  examination  of  one  of  the  plaintiffs,  it  was  proved  that 
the  appellant  (the  defendant)  was  a  farmer,  residing  in  Hartford 
county,  and  that  Hill  was  a  real  estate  broker,  and  neither  of  them 
had  any  skill  or  experience  in  building.  The  defendant,  to  support 
the  issue  on  his  part,  proved  by  said  Hill  that  he  was  a  real  estate 
broker,  in  Baltimore  city,  and  for  many  years  had  charge  of  the  de- 
mised premises,  as  agent  for  defendant,  and  was  acquainted  with  the 
value  of  leasehold  property  in  said  city,  and  propose  to  ask  the  said 
witness  what,  in  his  judgment,  was  the  value,  on  the  14th  of  April, 
1870,  of  the  residue  of  plaintiffs'  leasehold  interest  in  the  premises, 
taking  the  property  as  it  then  was,  before  he  had  undertaken  to  build 
the  wall,  or  obtained  permission  to  do  so,  assuming  that  under  the 
lease  the  plaintiffs  (the  appellees)  were  then  liable  for  and  bound  to 
make  the  repairs  then  necessary  to  be  made — to  which  the  appellees 
objected,  and  the  court  sustained  the  same,  and  refused  to  permit  the 
witness  to  answer,  to  which  refusal  the  appellant  excepted. 

The  object  for  which  the  proposed  testimony  was  offered  was  not 
indicated  by  the  appellant,  and  if  it  had  any  relevancy,  it  must  have 
been  as  to  the  quantum  of  damages. 

The  appellant  contends  that  the  witness,  as  an  ordinary  person,  was 
competent  to  testify  as  to  the  value  of  the  residue  of  the  term  ;  but 
as  an  expert,  he  was  entitled  to  give  his  opinion  of  its  value,  as  an 
•element  in  the  estimation  of  damages. 
43 


674  TORTS. 

The  appellees  deny  that  the  value  of  the  residue  of  the  term  en- 
tered at  all  into  the  consideration  of  the  amount  of  loss  which  resulted 
from  the  destruction  of  their  business ;  that  the  witness  possessed  no 
peculiar  qualification  which  authorized  him  to  speak  of  the  profits  or 
losses  which  they  would  sustain  from  an  interruption  of  their  pursuits r 
and  even  if  the  witness  was  competent  to  speak  of  the  subject-matter 
inquired  of,  the  subject-matter  of  the  question-  was  not  the  test  of 
damages. 

The  latter  view  of  the  question  we  think  is  the  correct  one. 

The  ground  of  action  was  the  negligent  or  unskillful  discharge  of 
a  commission  which  the  appellant  had  undertaken  to  perform.  The 
measure  of  damages  was  the  loss  sustained  by  the  appellees  in  conse- 
quence of  its  non-performance  through  want  of  skill  or  care. 

The  value  of  the  term,  under  pre-existing  contracts  and  relations 
between  the  parties  was  irrelevant  and  immaterial  to  the  issue.  The 
assumption  of  the  appellant  j^  secure  and  rebuild  the  wall,  whatever 
might  have  been  the  obligations  of  the  appellees  in  that  respect  under 
the  lease  previously,  operated  as  a  modification  of  the  appellees'  lia- 
bility pro  tanto,  and  the  testimony  offered  by  the  appellant  upon  the 
presumption  of  their  continuing  liability,  .would  have  been,  in  our 
judgment,  based  upon  an  erroneous  theory. 

[A  portion  of  the  opinion  not  material  to  the  question  of  the 
measure  of  damages  is  omitted  here.] 

Finding  no  error  in  the  rulings  of  the  court  below  by  which  the 
appellant  was  prejudiced,  the  judgment  below  is  affirmed. 

Judgment  affirmed. 


Injury  to  Property  by  Negligence. 


SUPREME  COURT,  NEW  JERSEY. 

[  1872.]    Weber  v.  The  Morris  and  Essex  Railroad 
Company  (35  N.  J.  409). 

In  an  action  to  recover  damages  for  the  burning  of  the  plaintiff's  buildings  by  the  de- 
fendant's negligence,  the  plaintiff  may  recover  his  whole  loss  notwithstanding  his 
prior  recovery  of  a  portion  of  it  from  the  insurers. 

This  is  an  action  on  the  case  brought  by  Weber,  who  sues  for  the 
benefit  of  the  Jersey  City  Insurance  Company,  against  the  Morris 


WEBER   v.   THE   MORRIS   AND   ESSEX   RAILROAD   COMPANY.      675 

and  Essex  Railroad  Company,  to  recover  damages  for  loss  of  property 
occasioned  by  the  improper  and  negligent  use  of  tlieir  locomotive 
engines. 

The  declaration  contains  three  counts,  to  which  defendants  have 
put  in  a  general  demurrer. 

Argued  on  written  briefs,  at  November  Term,  1871,  before  the 
Chief  Justice,  and  Justices  Depue,  Van  Syclel  and  Woodhull. 

Van  Stckel,  J. — The  declaration  contains  three  counts,  to  which 
there  is  a  general  demurrer. 

The  first  count  alleges  that  the  plaintiff  was  the  owner,  in  April, 
1867,  of  a  dwelling-house,  and  certain  personal  property  therein,  of 
the  value  of  $1,000,  on  which  there  was  an  insurance  in  the  Jersey 
City  Insurance  Company  against  loss  by  tire,  in  the  sum  of  $800 ; 
that  the  railroad  of  the  defendants  was  adjacent  to  said  house,  and 
that  it  was  the  duty  of  the  defendants  to  use,  maintain,  and  operate 
tlieir  locomotive  engines  in  such  manner  as  to  avoid,  and  by  all  prac- 
ticable means  to  prevent,  the  communication  of  fire  therefrom  to  any 
property  of  whatever  description,  of  any  owner  or  occupant  of  any 
land  adjacent  or  near  to  said  railroad  ;  that  through  and  by  reason  of 
the  careless,  negligent,  and  improper  and  unskillful  management  by 
the  defendants  of  such  engines,  fire  was  communicated  therefrom  to 
the  plaintiff's  house,  and  said  house,  and  all  the  personal  property 
therein,  wholly  consumed,  by  means  whereof  the  said  insurance  com- 
pany were  compelled  to  pay,  and  did  pay,  to  the  plaintiff,  the  whole 
amount  of  the  insurance  money  aforesaid.  The  declaration  con- 
cludes, "  to  the  damage  of  the  said  Jersey  City  Insurance  Company, 
•$1,600." 

The  first  ground  of  demurrer  is  not  material  here. 

The  second  ground  of  demurrer  is,  that  the  plaintiff  shows  that 
he  has  no  cause  of  action,  by  averring  that  the  damages  for  which 
this  suit  is  brought  were  paid  to  him  by  the  insurance  company  in 
pursuance  of  their  contract,  and  the  declaration  concludes  to  the 
damage  of  the  insurance  company,  and  not  to  the  damage  of  the 
plaintiff. 

Notwithstanding  such  payment,  an  action  will  lie  by  the  insured 
against  the  railroad  company.  The  insurance  is  to  be  treated  as  a 
mere  indemnity,  and  the  insured  and  insurer  regarded  as  one  person; 
therefore  payment  by  the  insurer  before  suit  brought,  cannot  affect 
the  right  of  action. 

In  Mason  v.  Sainsbury,  reported  in  3  Douglas  61,  suit  was 
brought  on  the  riot  act  to  recover  damages  for  the  demolition  of  a 
house  in  the  riots  of  1780..     The  property  having  been  insured  in  a 


676  TORTS. 

fire  office,  which  paid  the  loss,  the  action  was  in  the  name  of  the 
insured,  for  the  benefit  of  the  insurance  office. 

Lord  Mansfield  held  that  payment  by  the  insurer  was  not  in 
ease  of  the  Hundred,  and  not  as  co-obligors,  and  that  the  case  must 
be  considered  as  if  not  a  farthing  had  been  paid.  "  He  likened  it  to 
the  case  of  abandonment  in  marine  insurance,  where  the  insurer  is 
constantly  put  in  the  place  of  the  insured." 

Chief  Justice  Abbott,  in  citing  the  case  of  Mason  v.  Sainsbury, 
in  Clark  v.  The  Inhabitants  of  the  Hundred  of  Blything,  2  Bam.  & 
Cress.  254,  says  he  could  not  entertain  any  doubt  of  its  propriety ; 
and  he  held  that  where  the  owner  of  certain  stacks  of  hay  and  corn, 
which  were  maliciously  set  on  fire,  received  the  amount  of  his  loss 
from  an  insurance  office,  he  might,  nevertheless,  maintain  his  action 
against  the  Hundred. 

In  Yates  v.  Whyte,  4  Bing.  N.  E.  272,  which  was  the  case  of  a 
collision  at  sea,  the  plaintiff  recovered  his  whole  loss,  notwithstand- 
ing his  prior  recovery  of  a  portion  of  it  from  the  underwriters,  the 
court  saying  that  the  plaintiff  would  hold  in  trust  for  the  under- 
writers, the  court  saying  that  the  plaintiff  would  hold  in  trust  for  the 
underwriters  such  portion  as  they  had  paid  him. 

These  cases  are  referred  to,  and  their  authority  recognized,  by  Chief 
Justice  Shaw,  in  Hart  v.  The  Western  Railroad  Company  (13  Met. 
99);  and  in  the  Monmouth  Fire  Insurance  Company  v.  Hutchinson  (6 
C.  E.  Green,  107),  this  rule  is  said  to  be  settled. 

The  action,  therefore,  will  not  be  defeated  by  the  statement  in 
the  declaration  of  the  contract  of  insurance  and  payment  of  the  loss 
by  the  insurer,  although  such  statement  is  unnecessary,  and  may  be 
rejected  as  surplusage. 

The  conclusion  to  the  damage  of  the  insurance  company  must  be 
rejected.  The  plaintiff  cannot  recover  the  damages  of  the  insurance 
company ;  he  recovers  the  entire  loss  as  his  own  damage,  and  the  de- 
claration should  have  concluded  to  the  damage  of  the  plaintiff. 

This  pleading  is  therefore  without  the  conclusion  ad  damnum. 
It  is  clear  that  under  a  declaration  so  constructed,  no  substantial 
damages  can  be  recovered.  Will  this  omission  exclude  the  recovery 
even  of  nominal  damages  ?  The  law  implies  all  the  damages  which 
naturally  flow  from  a  tortious  act,  and  they  may  be  recovered  without 
being  specifically  stated  in  pleading,  but  the  plaintiff  cannot  recover 
in  excess  of  the  sum  he  claims. 

The  declaration  discloses  a  statement  of  facts  from  which  the  law 
will  imply  that  damage  has  resulted.  The  purpose  of  the  conclu- 
sion "  to  the  damage,"  is  to  give  notice  to  the  defendant  of  the  ex. 


MARTIN   v.   PORTER.  677 

tent  of  the  plaintiff's  claim,  and  where  there  is  an  entire  absence  of 
such  conclusion,  it  may  be  treated  as  notice  to  the  defendant  that 
nominal  damages  only  will  be  insisted  upon. 

In  my  opinion, the  declaration,  a?  framed,  will  support  a  recovery 
for  nominal  damages,  and  therefore  the  demurrer  cannot  prevail. 
The  demurrer  being  general,  the  other  counts  need  not  be  considered. 

If  the  plaintiff  desires  to  amend,  no  costs  should  be  allowed  on 
this  demurrer. 

The  Chief  Justice  and  Justice  Depue  concurred. 

Note. — See  The  Propeller  Monticello  0.  Mollison,  1 7  How.  252 ;  Yates  v.  Whyte. 
4  Bing.  N.  C.  272;  Althorf  e.  Wolfe,  22  N.  Y.  355;  Harding  v.  Town  of  Town- 
shend,  43  Vt.  536  ;  Bradburn  v.  Great  Western  Railway  Co.  L.  R.  10  Ex.  1 ;  and 
Sherlock  v.  Ailing,  44  Ind.  184,  which  accord  with  the  principle  of  the  foregoing 
decision. 

The  general  rule  of  damages  for  tortious  acts  is  this.  One  who  commits  such 
an  act  is  liable  for  any  injury  which  is  the  natural  and  probable  consequence  of 
his  misconduct.  He  is  liable  not  only  for  those  injuries  which  are  caused 
directly  or  immediately  by  his  act,  but  also  for  such  consequential  injuries  as 
according  to  the  common  experience  of  men  are  likely  to  result  from  it.  Nor  is 
he  exonerated  from  liability  by  the  fact  that  intervening  events  or  agencies 
contribute  to  the  injury.  The  true  inquiry  is,  whether  the  injury  sustained  was 
such  ac-ording  to  common  experience  and  the  usual  course  of  events  might 
reasonably  be  anticipated.     Djrry  v.  Fletnir,  118  JIass.  131. 

In  finding  a  verdict  for  the  value  of  property  converted  or  destroyed,  the 
jury  cannot  act  ou  their  judgment  alone.  The  value  must  be  proved.  Mooring 
V.Campbell,  47  Tex.  37. 


Trespass  foe  Coal  Minted. 


COURTS   OF    EXCHEQUER   AND    EXCHEQUER    CHAMBER. 

[1839.]  Martin  v.  Porter  (5  Mees.  &  V\T.  351). 

Where  the  defendant,  in  working  his  coal  mine,  broke  through  the  barrier,  and  worked 
the  coal  under  the  land  adjoining,  belonging  to  the  plaintiff,  and  raised  it  for  pur- 
poses of  sale: — Held,  in  trespass  for  such  working,  that  the  proper  estimate  of  dam- 
ages was  the  value  of  the  coal  when  gotten,  without  deducting  the  expense  of 
getting  it. 

Trespass  for  breaking  and  entering  the  plaintiffs  close,  situate  at 
Darfield,  in  the  county  of  York,  and  breaking  and  entering  a  certain 
coal  mine,  &c.  under  the  said  close,  and  taking  and  carrying  away 


678  TORTS. 

the  coal,  and  carrying  it  along  and  through  levels  and  ways,  and  tak- 
ing away  other  coals  and  converting  and  disposing  thereof  to  the  use 
of  the  defendant. 

Plea,  payment  into  court  of  the  sum  of  133/.,  and  no  damages 
ultra,     Replication,  damages  ultra. 

At  the  trial  before  Parke,  B.,  at  the  York  Spring  Assizes,  it  ap- 
peared that  the  plaintiff  was  a  lessee  of  coal  mines  under  the  Dnke  of 
Leeds,  and  that  the  defendant  was  the  owner  of  the  adjoining  estate. 
In  the  year  183S,  in  consequence  of  inquiries  having  been  instituted, 
it  was  discovered  that  the  defendant  had  worked  the  coal  under  the 
plaintiff's  land,  to  an  extent  exceeding  a  rood.  The  defendant,  by 
paying  money  into  court,  admitted  the  trespass ;  and  the  only  ques- 
tion at  the  trial  was,  upon  what  principle  the  damages  were  to  be 
assessed  ;  the  plaintiff  contending  that  he  had  a  right  to  hold  the  de- 
fendant liable  for  the  value  of  the  coal  when  gotten,  and  when  first  it 
existed  as  a  chattel,  without  any  deduction  for  the  expense  of  getting 
it ;  that  he  ought  also  to  pay  for  the  underground  way-leave,  having 
carried  coals  from  his  own  colliery  through  the  plaintiffs  bed  of  coal. 
The  learned  judge  was  of  opinion  that  the  plaintiff  would  have  been 
entitled  in  an  action  of  trover  to  the  value  of  the  coal  as  a  chattel, 
either  at  the  pit's  mouth  or  on  the  canal  bank,  if  the  plaintiff  had  de- 
manded it  at  either  place,  and  the  defendant  had  converted  it,  without 
allowing  the  defendant  anything  for  having  worked  and  brought  it 
there  ;  that,  not  having  made  such  a  demand,  and  this  action  being- 
trespass,  he  was  entitled  to  the  value  of  the  coal  as  a  chattel  at  the 
time  when  the  defendant  began  to  take  it  away,  that  is,  as  soon  as  it 
existed  as  a  chattel,  which  value  would  be  the  sale  price  at  the  pit's 
mouth,  after  deducting  the  expense  of  carrying  the  coals  from  the  place 
in  the  mine  where  they  were  got  to  the  pit's  mouth ;  and  that  he  was 
also  entitled  to  compensation  for  the  defendant's  passing  through  his 
coal,  with  coals  gotten  from  his  own  mines,  and  ought  to  pay  as  for  a 
way-leave,  which,  in  the  neighborhood  of  Leeds,  was  proved  to  be  2d. 
per  ton.  The  jury  adopted  the  above  principle,  and  found  the  value 
of  the  coals,  when  got,  to  be  25 11.  9.s.  Gd.  ;  and  they  also  gave  501.  for 
the  use  of  the  way-leave,  making  together,  301/.  9s.  6d.  The  learned 
judge  gave  the  defendant  leave  to  move  to  reduce  the  damages  to  161., 
if  this  court  should  be  of  opinion  that  the  proper  measure  of  damages 
was  the  value  of  the  coal  in  the  bed,  which  the  jury  estimated  at 
140/. 

Lord  Abingek,  Ch.  B. — I  am  of  opinion  that  there  ought  to  be  no 
rule  in  this  case.  If  the  plaintiff  had  demanded  the  coals  from  the 
defendant,  no  lien  could  have  been  set  up  in  respect  of  the  expense  of 


FORSYTH  v.    WELL'S.  679 

getting  them.  How,  then,  can  he  now  claim  to  deduct  it  ?  He  can- 
not set  up  his  own  wrongs.  The  plaintiff  had  a  right  to  treat  these 
coals  as  a  chattel  to  which  he  was  entitled.  He  did  so,  and  the  only 
question  then  was  their  value.  That  the  jury  have  found.  It  may 
seem  a  hardship  that  the  plaintiff  should  make  this  extra  profit  of  the 
coal,  but  still  the  rule  of  law  must  prevail. 

Parke,  B. — I  remain  of  the  same  opinion  as  I  entertained  at  the 
trial.  The  plaintiff  is  entitled  to  be  placed  in  the  same  situation  as  if 
these  coals  had  been  chattels  belonging  to  himself,  which  had  been 
earned  away  by  the  defendant,  and  must  be  paid  their  value  at  the 
time  they  were  begun  to  be  taken  away.  He  had  a  right  to  them, 
without  being  subject  to  the  expense  of  getting  them,  which  was  a 
wrongful  act  by  the  defendant,  and  for  which  the  defendant  cannot 
claim  to  be  reimbursed.  I  am  not  sorry  this  rule  is  adopted  ;  as  it 
will  tend  to  prevent  trespasses  of  this  kind,  which  are  generally 
wilful. 

Alderson,  B. — I  am  of  opinion  that  the  plaintiff  is  entitled  to 
damages,  as  for  a  trespass  to  his  goods,  the  same  as  he  would  to  any 
other  description  of  goods  belonging  to  him.  The  proper  estimate 
is  the  value  of  them  when  gotten,  and  when  the  defendant  took 
them  away. 

Maule,  B. — I  concur  with  the  rest  of  the  court,  and  think  the 
plaintiff  had  his  claims  assessed  in  a  manner  which  he  was  entitled 
to. 

Rule  refused. 

Note.— The  same  rule  was  adopted  in  Wild  v.  Holt  (9  M.  &  W.  672),  which 
was  an  action  of  trover.  It  was  recently  followed  in  Illinois.  Illinois  v.  St.  Louis 
Railroad  &  Coal  Co.  82  111.  627. 


Trover  for  Coal  Mixed  on    Another's  Land  by  Mistake. 


SUPREME    COURT,     PENNSYLVANIA. 

[1861.]  Forsyth  v.  Wells  (41  Peun.  St.  291). 

Trover  lies  for  eoal  mined  upon,  and  earnied  away  from  another's  land  by  mistake. 
The  measure  of  damages  is  the  fair  value  of  the  coal  in  place,  and  such  injury  to  the 
land  as  the  mining  may  have  caused. 

Error  to  the  Common  Pleas  of  Fayette  county. 

This  was  an  action  on  the  case  brought  February  22d,  1859,  by 


6S0  TORTS. 

Deborah  Wells  against  William  and  Robert  Forsyth.  The  plaintiff 
declared  in  trover  for  mining  and  carrying  away  coal  from  her  lands, 
to  which  defendants  pleaded  not  guilty.  On  the  trial  a  nolle  prose- 
qui  was  entered  as  to  William  Forsyth,  and  the  case  tried  against 
Robert  alone. 

The  parties  were  owners  of  adjoining  tracts  of  coal  land,  and  the 
defendant  had  opened  a  mine  or  drift  on  his  land  near  the  line,  and 
worked  it  for  several  years.  The  surface  being  rough  and  hilly,  the 
dividing  line  was  not  exactly  known ;  and  the  plaintiff  claimed  that 
the  defendant  had  dug  coal  in  his  drift  over  the  line  and  out  of  her 
land  ;  which  was  denied. 

It  was  contended  for  the  defendant,  that  trover  was  not  the 
proper  remedy  under  the  evidence  in  the  case,  and  that  it  would 
not  lie;  but  the  court  charged  the  jury  that  trover  would  lie, 
and  that  the  defendant  must  account  for  the  coal  in  this  form  of 
action. 

The  plaintiff  claimed  that  the  measure  of  damages  was  the 
value  of  the  coal  when  dug  in  the  bank,  or  what  was  called 
"  knocked  down."  While  it  was  contended  on  the  part  of  the 
defendant,  that  if  he  was  bound  to  account  in  this  form  of  action 
at  all,  the  measure  of  damages  would  be  the  value  of  the  coal  in 
the  ground,  before  he  had  expended  any  labor  in  preparing  it  for 
market,  in  support  of  which  he  offered  evidence  of  the  value  of 
coal  leave  ;  but  the  court  rejected  the  evidence,  and  charged  the 
jury  that  the  measure  of  damages  was  the  value  of  the  coal  when 
"  knocked  down  "  in  the  bank — the  difference  in  value  being  about 
one  to  eight. 

The  charge  of  the  court  was  as  follows  :  "  According  to  the  evi- 
dence of  Samuel  C.  Griffith,  the  line  between  the  Wells  and  Forsyth 
tract  is  where  he  run  it  in  the  fall  of  1860  ;  and  this  line  places  a 
part  of  the  coal  drift  used  by  the  defendant,  upon  the  Wells  tract. 
All  the  coal,  therefore,  which  he  mined  on  this  locality  he  must  ac- 
count for  in  this  action,  unless  he  can  show  that  he  claimed  the  locus, 
and  had  it  in  his  actual  possession.  As  to  what  would  constitute 
actual  adverse  possession,  as  against  one  in  constructive  possession 
under  a  perfect  title,  as  shown  by  plaintiff,  we  would  say  that  the 
occupation  must  not  be  occasional,  but  constant,  actual,  visible,  and 
notorious.  We  do  not  say  that  where  there  is  an  actual  possession 
for  the  purposes  used  by  the  defendant,  there  should  be  a  correspond- 
ing surface  possession,  when  there  is  no  actual  possession  by  the 
owner.  Nor  is  it  necessary  that  the  party  claiming  the  actual  pos- 
session should  be  constantly  in  the  bank  ;  but  such  kind  of  occupancy 


FORSYTH  v.   WELLS.  681 

as  is  usual  with  such  kind  of  property.  With  this  explanation,  you 
will,  perhaps,  have  little  difficulty  under  the  evidence  in  finding  that 
the  defendant  was  in  the  actual  possession  of  this  coal  bank  during 
the  period  in  which  he  abstracted  this  coal.  Your  next  inquiry  will 
be,  did  he  claim  this  place  adversely  as  belonging  to  his  own  tract, 
or  rather,  I  should  say,  within  the  lines  of  his  tract  ?  To  ascertain 
this  you  will  inquire  what  line  did  he  claim  ?  If  to  the  line  as  run 
by  Mr.  Griffith,  then  it  makes  no  difference  whether  he  was  aware 
that  line  would  include  the  place  he  was  mining  or  not.  It  is  not  a 
question  whether  he  was  mistaken  as  to  the  location  of  his  drifts  in 
respect  to  the  surface  line ;  but  the  fact  whether  the  line  run  by 
Griffith  is  the  true  boundary  between  the  plaintiff  and  the  defendant 
— for,  if  holding  by  mistake,  he  was  not  holding  adverse. 

"  Now,  if  you  believe  from  this  that  defendant  claimed  to  the 
Griffith  line,  and  that  line  gives  to  the  plaintiff  the  place  where  this 
coal  was  taken  from  as  claimed  by  her,  she  will  be  entitled  to  recover 
in  this  form  of  action.  And  we  charge  you  that  it  matters  not  that 
defendant  supposed  during  the  whole  time  he  was  mining  this  coal, 
that  it  was  on  his  own  side  of  the  line.  If,  on  the  other  hand,  you 
believe  defendant  claimed  to  a  different  line,  one  which  would  throw 
the  coal  mined  on  his  side,  the  plaintiff  cannot  recover.  This  last 
observation  must  be  qualified.  If,  during  the  time  he  was  mining 
the  coal,  he  intended  to  be  governed  by  the  true  line,  and  this  line 
run  by  Griffith  is  the  true  line,  and  he  assents  to  it,  plaintiff  will  not 
be  prevented  from  her  recovery,  because  defendant  held  to  a  mis- 
taken line  at  the  time  the  coal  was  being  mined.  If  it  was  a  mere 
mistake  as  to  the  location  of  the  true  line,  and  not  a  claiming  of  a 
different  and  distinct  line,  the  action  can  be  maintained  ;  but  if  de- 
fendant did  claim  to  a  line  which  would  include  the  coal,  the  action 
cannot  be  maintained.  There  can  be  no  disseizin  by  mistake  ;  al- 
though the  owner  may  elect  to  consider  himself  disseized  for  the 
purpose  of  bringing  his  ejectment." 

Under  these  instructions  there  was  a  verdict  and  judgment  in 
favor  of  plaintiff  for  $775.92.  Whereupon  the  defendant  sued  out 
this  writ,  assigning  here,  as  cause  for  reversing  the  judgment,  that 
the  court  below  erred,  1.  In  charging  the  jury  that  if  the  defendant 
mined  any  coal  on  the  land  of  the  plaintiff,  he  must  account  for  it  in 
this  form  of  action. 

2.  In  charging  the  jury  that  this  action  could  be  maintained  un- 
der the  evidence. 

3.  The  whole  charge,  from  the  commencement  to  the  word 
"  ejectment." 


682  TORTS. 

4.  In  instructing  the  jury  that  the  measure  of  damages  was  tlie 
value  of  the  coal  when  knocked  dowu. 

5.  In  not  receiving  defendant's  evidence  as  to  the  value  of  the 
coal  leave. 

The  opinion  of  the  court  was  delivered  by, 

Lowkie,  Ch.  J. — We  are  to  assume  that  it  was  by  mistake  that  the 
defendant  below  went  beyond  his  line  in  mining  his  coal,  and  mined 
and  carried  away  some  of  the  plaintiff's  coal,  and  it  is  fully  settled 
that  for  this  trover  lies  (3  S.  &  E.  515  ;  9  Watts,  172  ;  8  Barr,  294  ; 
9  Id.  343  ;  9  Casey,  251). 

What,  then,  is  the  measure  of  damages?  The  plaintiff  insists 
that,  because  the  action  is  allowed  for  the  coal  as  personal  property, 
that  is,  after  it  had  been  mined  or  severed  from  the  realty,  therefore, 
by  necessary  logical  sequence,  she  is  entitled  to  the  value  of  the  coal 
as  it  lay  in  the  pit  after  it  had  been  mined  ;  and  so  it  was  decided 
below.  It  is  apparent  that  this  view  would  transfer  to  the  plaintiff 
all  the  defendant's  labor  in  mining  the  coal,  and  thus  give  her  more 
than  compensation  for  the  injury  done. 

Yet  we  admit  the  accuracy  of  this  conclusion,  if  we  may  prop- 
erly base  our  reasoning  on  the  form,  rather  than  on  the  princi- 
ple or  purpose  of  the  remedy.  But  this  we  may  not  do  ;  and 
especially  we  may  not  sacrifice  the  principle  to  the  very  form  by 
which  we  are  endeavoring  to  enforce  it.  Principles  can  never  be 
realized  without  forms,  and  they  are  often  inevitably  embarrassed 
by  unfitting  ones  ;  but  still  the  fact  that  the  form  is  for  the  sake 
of  the  principle,  and  not  the  principle  for  the  form,  requires  that 
the  form  shall  serve,  not  rule,  the  principle,  and  must  be  adapted 
to  its  office. 

Just  compensation  in  a  special  class  of  cases  is  the  principle 
of  the  action  of  trover,  and  a  little  study  will  show  us  that  it  is 
no  unyielding  form,  but  adapts  itself  to  a  great  variety  of  circum- 
stances. In  its  original  purpose,  and  in  strict  form,  it  is  an  ac- 
tion for  the  value  of  personal  property  lost  by  one  and  found  by 
another,  and  converted  to  his  own  use.  But  it  is  not  thus  re- 
stricted in  practice ;  for  it  is  continually  applied  to  every  form  of 
wrongful  conversion,  and  of  wrongful  taking  and  conversion,  and 
it  affords  compensation  not  only  for  the  value  of  the  goods,  but 
also  for  outrage  and  malice  in  the  taking  and  detention  of  them 
(6  S.  &  R.  426  ;  12  Id.  93  ;  3  Watts,  333).  Thus  form  yields  to 
purpose  for  the  sake  of  completeness  of  remedy.  Even  the  action 
of  replevin  adapts  itself  thus  (1  Jones,  381).  And  so  does  trespass 
(7  Casey,  450). 


FORSYTH   v.   WELLS.  683 

In  very  strict  form,  trespass  is  the  proper  remedy  for  a  wrongful 
taking  of  personal  property,  and  for  cutting  timber,  or  quarrying 
stone,  or  digging  coal  on  another  man's  land  and  carrying  it  away  : 
and  yet  the  trespass  may  be  waived  and  trover  maintained,  without 
giving  up  any  claim  for  any  outrage  or  violence  in  the  act  of  taking 
(3  Barr,  13).  It  is  quite  apparent,  therefore,  that  this  form  of  ac- 
tion is  not  so  uniform  and  rigid  in  its  administration  as  to  force 
upon  us  any  given  or  arbitrary  measure  of  compensation.  It  is 
simply  a  form  of  reaching  a  jusi  compensation,  according  to  cir- 
cumstances, for  goods  wrongfully  appropriated.  When  there  is  no 
fraud,  or  violence,  or  malice,  the  just  value  of  the  property  is  enough 
(11  Casey,  28). 

When  the  taking  and  conversion  are  one  act,  or  one  continued 
series  of  acts,  trespass  is  the  more  obvious  and  proper  remedy  ;  but 
the  law  allows  the  waiver'  of  the  taking,  so  that  the  party  may  sue  in 
trover  ;  and  this  is  often  convenient.  Sometimes  it  is  even  neces- 
sary ;  because  the  plaintiff,  with  full  j:>roof  of  the  conversion,  may 
fail  to  prove  the  taking  by  the  defendant.  But  when  the  law  does 
allow  this  departure  from  the  strict  form,  it  is  not  in  order  to  ena- 
ble the  plaintiff,  by  his  own  choice  of  actions,  to  increase  his  recovery 
beyond  just  compensation ;  but  only  to  give  him  a  more  convenient 
form  for  recovering  that  much. 

Our  case  raises  a  question  of  taking  by  mere  mistake,  because 
of  the  uncertainty  of  boundaries  ;  and  we  must  confine  ourselves  to 
this.  The  many  conflicting  opinions  on  the  measure  of  damages 
in  cases  of  willful  wrong,  and  especially  the  very  learned  and 
thoughtful  opinions  in  the  case  of  Silsbury  v.  McCoon  (1  Denio, 
332,  and  3  Comst.  379),  warn  us  to  be  careful  how  we  express  our- 
selves on  that  subject. 

We  do  find  cases  of  trespass,  where  judges  have  adopted  a 
mode  of  calculating  damages  for  taking  coal,  that  is  substantially 
equivalent  to  the  rule  laid  down  by  the  Common  Pleas  in  this 
case,  even  where  no  willful  wrong  was  done,  unless  the  taking  of 
the  coal  out  by  the  plaintiff's  entry  was  regarded  as  such.  But 
even  then,  we  cannot  avoid  feeling  that  there  is  a  taint  of  arbi- 
trariness in  such  a  mode  of  calculation,  because  it  does  not  truly 
mete  out  just  compensation  (5  M.  &  W.  351  ;  9  Id.  672  ;  3  Queen's 
B.  283  ;  and  see  28  Eng.  L.  &  E.  175).  We  prefer  the  rule  in  Wood 
v.  Morewood  (3  Queens  B.  440,  n.),  where  Pakke,  B„  decided,  in  a 
case  of  trover  for  taking  coals,  that  if  the  defendant  acted  fairly  and 
honestly,  in  the  full  belief  of  his  right,  then  the  measure  of  damages 
is  the  fair  value  of  the  coals,  as  if  the  coal  field  had  been  purchased 


684  TORTS. 

from  the  plaintiffs  (see  also  Bainbriclge  on  Mines  and  Minerals,  510 ; 
17  Pick.  1). 

Where  the  defendant's  conduct,  measured  by  the  standard  of  or- 
dinary morality  and  care,  which  is  the  standard  of  the  law,  is  not 
chargeable  with  fraud,  violence,  or  willful  negligence  or  wrong,  the 
value  of  the  property  taken  and  converted  is  the  measure  of  just 
compensation.  If  raw  material  has,  after  appropriation  and  without 
such  wrong,  been  changed  by  manufacture  into  a  new  species  of 
property,  as  grain  into  whiskey,  grapes  into  wine,  furs  into  hats,  hides 
■  into  leather,  or  trees  into  lumber,  the  law  either  refuses  the  action  of 
trover  for  the  new  article,  or  limits  the  recovery  to  the  value  of  the 
original  article  (6  Hill,  425,  and  note;  21  Barbour,  92;  23  Conn. 
523  ;  38  Maine,  174). 

Where  there  is  no  wrongful  purpose  or  wrongful  negligence  in 
the  defendant,  compensation  for  the  real  injury  done  is  the  pur- 
pose of  all  remedies  ;  and  so  long  as  we  bear  this  in  mind,  we  shall 
have  but  little  difficulty  in  managing  the  forms  of  actions  so  as  to 
secure  a  fair  result.  If  the  defendant  in  this  case  was  guilty  of  no 
intentional  wrong,  he  ought  not  to  have  been  charged  with  the  value 
of  the  coal  after  he  had  been  at  the  expense  of  mining  it ;  but  only 
with  its  value  in  place,  and  with  such  other  damage  to  the  land  as 
his  mining  may  have  caused.  Such  would  manifestly  be  the  measure 
in  trespass  for  mesne  profits  (7  Casey,  456). 

Judgment  reversed,  and  a  new  trial  awarded. 

Bead,  J.,  dissented. 

Note. — If  in  an  action  of  trespass  for  breaking  and  entering  the  plaintiffs' 
coal  lands,  it  be  made  to  appear  that  the  defendant  mined  out  coal  from  said 
lands,  and  made  excavations  thereunder,  and  removed  the  coal  so  excavated,  and 
thereby  injured  the  coal  left  remaining  as  pillars,  or  by  bad  mining  or  otherwise, 
rendered  it  difficult  or  impossible  for  the  plaintiffs  to  get  out  or  remove  such 
pillars  of  remaining  coal,  or  rendered  it  of  less  value  to  them,  then  they  are  enti- 
tled to  recover  for  such  coal  as  cannot  be  removed,  what  it  was  worth  per  ton  in 
its  native  bed,  and  such  damages  for  so  much  of  said  coal  as  can  be  removed,  but 
with  increased  expense,  as  the  evidence  may  show  such  coal  to  be  diminished  in 
value.  And  if  the  defendant,  in  mining  and  excavating  under  the  said  lands, 
thereby  rendered  it  more  difficult  and  expensive  for  the  plaintiffs  to  obtain  access 
to  the  coal  thereunder,  and  depreciated  the  value  of  said  remaining  coal,  the 
plaintiffs  are  entitled  to  such  damages  as  they  may  have  sustained  from  the  de- 
preciation of  the  land  and  the  increased  difficulty  and  expense  of  obtaining  ac- 
cess to  the  coal  remaining  therein.  In  an  action  of  trespass  for  breaking  and 
entering  the  plaintiffs'  close,  and  mining  and  carrying  away  their  coal,  the  proper 
estimate  of  damages  is  the  value  of  the  coal  per  ton,  after  it  is  severed  from  its 
native  bed,  and  before  it  is  put  upon  the  mine-cars,  without  deducting  the  ex- 
pense of  severing  it ;  and  rf  the  defendant  knew,   at  the  time  the  trespass  was 


WOODMAN   v.    NOTTINGHAM.  685 

committed,  that  the  land  was  not  its  own,  the  plaintiffs  are  entitled  to  exemplary 
damages.  The  Barton  Coal  Company  v.  Walter  S.  Cox  and  Thomas  C.  Cox,  Ex- 
ecutors, 39  Md.  1  (1873). 

It  was  held  in  Mississippi,  in  an  action  of  replevin,  where  the  taking  com- 
plained of  was  malicious  or  oppressive,  and  the  damages  might,  therefore,  prop- 
erly be  punative,  the  defendant  should  not  be  allowed  for  any  increased  value  he 
might  have  bestowed  on  the  property  by  his  skill  and  labor.  Heard  v.  James,  49 
Miss.  236. 

The  damages  sustained  by  one  who  has  been  prevented  from  mining  mineral 
which  he  had  a  right  to  mine  is  the  value  of  the  mineral  less  the  reasonable  cost 
of  mining  it.  Mayer.  Tappan,  23  Cal.  306;  Chamberlain  v.  Collinson,  45  Iowa, 
429.  If  the  plaintiff  own  the  mineral  land,  the  damage  done  to  the  real  estate 
is  to  be  added.     Stockbridge  Iron  Co.  v.  Stove  Iron  "Works,  102  Mass.  80. 


Action  against  a  Town  for  Injuries  sustained  from  a  Defect  in 
the  Highway  ;  Extent  and  Kind  of  Damages  Recoverable  ; 
Construction  of  Statute  giving  Damages. 


SUPREME    JUDICIAL    COURT,    NEW    HAMPSHIRE. 

[1870.]        Woodman  v.  Nottingham  (49  N.  H.  387). 

The  want  of  a  sufficient  railing  upon  the  sides  of  a  bridge  or  public  highway,  when  nec- 
essary for  the  security  of  the  traveller,  constitutes  a  legal  defect,  for  which  towns  in 
case  of  accident  will  be  held  liable. 

Under  a  statute  of  New  Hampshire,  by  which  towns  were  "  made  liable  for  damages 
happening  to  any  person,  his  team  or  carriage,  travelling  upon  a  highway,  or  bridge 
thereon,  by  reason  of  any  obstruction,  defect,  insufficiency  or  want  of  repair,  which 
renders  it  unsuitable  for  the  travel  thereon,"  damages  are  recoverable  for  the  prob- 
able proximate  or  direct  consequences  of  such  defect,  where  a  party  has  suffered 
either  injury  to  his  person  or  loss  of  personal  property. 

The  measure  of  damages  in  such  cases  will  be  full  indemnity  for  any  and  all  injuries  oc- 
casioned thereby,  either  to  the  person  or  the  loss  of  clothing,  or  money  in  the 
pockets  of  the  person  at  the  time  of  the  accident,  as  well  as  the  team,  which  em- 
braces the  animals,  carriage,  or  load  thereon. 

The  statute,  regulating  this  subject,  does  not  contemplate  exemplary  or  vindictive  dam- 
ages to  the  suffering  party. 

A  bailee,  having  a  special  property  in  the  property  injured,  or  money  lost,  may  recover 
for  the  whole  value  of  the  property,  he  holding  the  value  beyond  his  own  interest 
in  trust  for  the  general  owner,  and  the  judgment  recovered  b}'  the  bailee  may  be 
pleaded  in  bar  to  any  action  that  might  afterwards  be  brought  by  the  general  owner 
for  the  same  property. 

Case,  by  Ira  H.  Woodman  against  town  of  Nottingham,  to  re- 
cover damages  for  injuries  received  in  consequence  of  a  defect  in  a 
highway  in  said  town.     Plaintiff  set  forth  in  his  declaration  that  he 


686  TORTS. 

was  injured  in  his  person  and  in  his  apparel ;  that  his  horses,  harnesses 
and  wagon  were  damaged  ;  and  that  in  being  thrown  from  the  wagon 
into  a  brook  at  the  time  of  the  injury,  he  lost  over  five  hundred 
dollars  in  money  that  was  in  his  pocket,  which  was  never  recovered. 
Defendant  objected  that  plaintiff  could  not  recover  for  any  money 
tie  might  have  lost  in  this  action,  and  objected  to  all  evidence  tend- 
ing to  show  the  loss  of  the  money.  But  the  court  admitted  the 
testimony,  and  instructed  the  jury,  that,  if  they  should  find  that  the 
plaintiff  was  entitled  to  recover  anything  against  the  town,  they 
might  allow  him  damages  for  the  amount  of  money  he  lost,  if  the 
loss  was  caused  by  the  defect  in  the  highway.  To  all  which  the  de- 
fendant excepted.  It  appeared  that  the  horses,  harnesses  and  wagon, 
which  the  plaintiff  was  using  at  the  time  of  the  accident,  and  which 
were  injured,  belonged  to  plaintiff's  uncle,  who  purchased  and  paid 
for  the  same  two  years  before,  and  let  the  plaintiff  have  them  to  use 
as  long  as  he  might  wish  to  use  them,  and  that,  when  done  with 
them,  plaintiff  was  to  return  them  in  as  good  condition  as  when 
received,  ordinary  wear  and  depreciation  excepted.  While  the 
plaintiff  was  thus  using  this  property,  it  was  injured,  and  defendant 
objected  that  upon  these  facts  plaintiff  could  not  recover  in  this  suit 
for  any  injury  to  this  property ;  but  the  court  admitted  the  evidence 
and  instructed  the  jury  that  if  the  plaintiff  was  entitled  to  recover 
anything  against  the  town,  they  might  allow  him  damages  for  the 
full  amount  of  injury  done  to  the  horses,  harnesses  and  wagon.  To 
which  defendant  excepted.  There  was  evidence  tending  to  show 
that  some  $494  of  the  money  which  plaintiff  claimed  to  have  lost, 
had  been  paid  to  him  the  day  before  for  third  persons,  but  the  evi- 
dence also  tended  to  show  that  he  was  a  common  carrier,  and  re- 
ceived this  money  as  such  ;  or  that  he  was  the  authorized  agent  of 
the  parties  to  whom  the  money  was  due  to  receive  it  for  them,  and 
that  this  fact  was  known  to  those  who  paid  him  the  money.  The 
court  instructed  the  jury  that  if  they  found  the  defendant  liable  for 
any  of  the  money,  they  might  give  damages  for  the  whole  amount 
he  lost.     To  which  instruction  defendant  excepted. 

M.  C.  Tut  tie  was  a  witness  for  the  defendant,  who  saw  the  money 
in  the  plaintiff's  pocket-book  just  before  the  accident,  and  when 
asked,  on  cross-examination,  how  much  money  he  thought  there  was 
of  it,  judging  from  the  size  of  the  pile,  he  said  there  might  have 
been  $150  or  $200  of  it.  For  the  purpose  of  contradicting  this 
witness,  the  plaintiff  introduced  a  witness  who  was  allowed  to  testi- 
fy, subject  to  defendant's  exception,  that  said  Tuttle,  on  a  certain 
occasion,  said  to  him,  that,  judging  from  the  pile  of  money  which 


WOODMAN   v.   NOTTINGHAM.  6$  ( 

plaintiff  had  on  the  occasion  referred  to,  there  must  have  been  as 
much  as  $500  of  it,  if  he  had  no  bill  larger  than  a  $5  bill. 

The  court  instructed  the  jury  that  they  might  give  exemplary 
damages,  if,  in  their  judgment,  the  circumstances  warranted  it.  To 
which  defendant  excepted.  The  defect  in  the  highway  complained 
of  was  the  want  of  a  railing  on  the  side  of  a  bridge,  which  crossed 
said  highway,  in  consequence  of  which,  it  was  alleged,  that  plaintiff, 
who  was  crossing  said  bridge  in  the  night,  ran  off  the  side  of  the 
bridge  and  was  injured.  Evidence  as  to  the  darkness  of  the  night 
was  conflicting. 

The  defendant  requested  the  court  to  instruct  the  jury,  that  if 
the  night  was  so  dark  that  the  plaintiff  could  not  see  the  road,  and 
he  was  driving  without  a  light,  or  other  means  of  distinguishing  the 
road,  he  was  not  in  the  exercise  of  due  care  and  caution.  Also, 
that,  if  the  plaintiff  knew  of  the  defect  in  the  bridge,  it  was  negli- 
gence in  him  to  attempt  to  cross  it  in  the  night  when  it  was  so  dark 
that  he  could  not  see  the  way.  Also,  that  a  party  driving  a  horse 
team  upon  a  highway  when  it  is  so  dark  he  cannot  see  the  way,  does 
so  at  his  peril,  unless  he  provides  himself  with  a  light  or  some 
means  of  distinguishing  the  road.  Also,  that  towns  are  not  bound 
by  law  to  construct  their  highways  in  such  a  manner  as  to  be  safe 
for  persons  to  drive  horse  teams  thereon,  without  a  light  or  some 
means  of  distinguishing  the  way,  when  it  is  so  dark  that  thev  can- 
not see  the  road.  Which  the  court  declined  to  do,  and  defendant 
excepted. 

It  appeared  that  the  plaintiff  was  well  acquainted  with  the  road 
and  bridge  at  the  place  of  the  accident,  and  had  driven  the  same 
team  over  this  road  some  four  times  a  week  for  one  or  two  years  be- 
fore the  accident. 

And  the  court  instructed  the  jury  that  the  question  was,  whether 
or  not  the  plaintiff  was  in  the  exercise  of  ordinary  care  and  prudence 
in  driving  over  the  bridge,  under  all  the  circumstances  of  the  case ; 
that,  if  the  night  was  so  dark  that  a  reasonably  prudent  man  would 
not  have  undertaken  to  go  over  the  bridge  without  a  light,  he  being 
as  well  acquainted  with  the  condition  of  the  road  and  the  bridge  as 
the  plaintiff  was,  then  the  plaintiff  would  be  in  fault,  and  could  not 
recover.  But  if  they  should  find  that  the  plaintiff  was,  considering 
the  darkness  of  the  night  and  his  acquaintance  with  the  May  and  all 
the  attendant  circumstances,  in  the  exercise  of  ordinary  care  and 
caution,  and  his  injuries  and  damages  were  caused  by  a  defect  in  the 
highway,  then  the  plaintiff  might  recover. 

The  court  also  requested  the  jury,  if  they  found  for  the  plaintiff, 


688  TORTS. 

to  state  the  several  items,  of  which  their  general  verdict  should  be 
made  up.  The  jury  returned  a  verdict  for  plaintiff  for  $678,  which 
they  certified  was  made  up  as  follows  : 

For  damages  in  plaintiff's  person  and  clothing,     $13  00 
For  damages  to  horses,  harnesses  and  wagon,       60  00 

For  whole  amount  of  money  lost 505  00 

For  exemplary  damages 100  00 


$678  00 

Which  verdict  the  defendant  moves  to  set  aside. 

The  questions  of  law  were  reserved. 

Xesmith,  J. — Under  section  one  of  chapter  sixty-nine  of  the 
General  Statutes  now  in  force  in  this  State,  "  towns  are  made  liable 
for  damages  happening  to  any  person,  his  team  or  carriage,  traveling 
upon  a  highway,  or  bridge  thereon,  by  reason  of  any  obstruction, 
defect,  insufficiency,  or  want  of  repair,  which  renders  it  unsuitable 
for  the  travel  thereon."  It  will  be  seen  that  this  section  is  made  to 
differ  slightly  from  the  first  section  of  chapter  thirty-seven  of  the 
Revised  Statutes.  The  words  "  special  damage  "  are  exchanged  for 
the  more  comprehensive  and  general  term  "  damages,"  implying  any 
and  all  damages,  whether  specially  set  forth  in  the  plaintiff's  declara- 
tion or  not.  Then  the  word  "  defect "  is  for  the  first  time  intro- 
duced into  the  present  statute,  a  word  that  gives  emphasis  and  addi- 
tional strength  and  meaning  to  the  language  of  the  old  statute,  viz., 
"  obstruction,  insufficiency,  or  want  of  repair."  The  word  "  travel- 
ing upon  a  highway  or  bridge,"  appear  to  be  used  here  for  the  pur- 
pose of  showing  that  it  was  the  object  of  this  section  of  the  law  to 
give  a  remedy  to  the  person  honestly  and  properly  using  the  high- 
way or  bridge,  which  the  town  was  bound  to  maintain  and  keep  in 
suitable  repair. 

The  defendant's  counsel,  and  his  elaborate  brief  in  this  case,  con- 
tends that  the  court  should  give  a  more  limited  or  restrictive  con- 
struction to  the  aforesaid  statute,  than  it  has  usually  received  from 
the  courts  in  this  State. 

Our  decisions  in  cases  like  this,  in  this  State,  have  sustained  the 
rule  of  giving  indemnity  for  injuries  to  property,  as  well  as  to  the 
person.  We  have  interpreted  the  word  damages  to  mean  here  a 
compensation,  recompense,  or  satisfaction  to  a  party  plaintiff  for  an 
injury  actually  received  by  him  from  the  defendant,  and  precisely 
commensurate  with  the  injury,  whether  it  be  to  his  person  or  estate 
(2  Greenl.  Evid.  §  253). 

The  plaintiff  first  proving  the  defendant  to  be  in  fault,  or  a 


WOODMAN  t.   NOTTINGHAM.  689 

wrong-doer,  then  it  legitimately  follows  that  it  should  be  held  liable 
for  the  natural,  proximate  and  direct  consequences  of  its  default 
(Butler  v.  Kent,  19  Johns.  223).  The  default  on  the  part  of  the  de- 
fendant in  this  case  was  a  failure  to  provide  a  sufficient  railing  at  the 
side  of  the  bridge,  which  it  was  liable  to  maintain,  and  as  a  direct 
result  of  such  negligence,  this  accident  has  happened  to  plaintiff. 
In  Massachusetts,  it  has  been  held,  that  the  want  of  such  a  railing  at 
the  side  of  a  highway,  when  necessary  to  the  security  of  travelers, 
constitutes  a  legal  deficiency  in  the  way  within  the  meaning  of  their 
statute  (Williams  v.  Clinton,  28  Conn.  264  ;  Hayden  v.  Attleborough, 
7  Gray,  338). 

The  New  Hampshire  statute  has  received  a  similar  construction 
(Davis  v.  Hill,  41  K  H.  329 ;  Willey  v.  Portsmouth,  35  K  H.  303  ; 
Norris  v.  Litchfield,  36  K  H.  271). 

The  question  of  liberty  in  this  case  was  properly  submitted  to 
the  jury  to  find,  and  their  verdict  settled  the  fact  against  the  de- 
fendant. 

\Ve  do  not  understand  the  defendant's  counsel  to  complain  of  the 
compensation  given  by  the  jury  for  the  actual  bodily  injury,  but,  he 
contends  against  the  allowance  more  especially  for  the  loss  of  the 
money  in  the  plaintiff's  pocket,  and  which  the  jury  have  found 
plaintiff  did  lose,  because  such  loss  was  the  proximate,  natural  or 
direct  consequence  of  such  accident. 

In  our  view,  the  fair  and  reasonable  construction  of  our  statute 
requires,  or  necessarily  implies,  that  the  word  damage,  which  shall 
happen  to  any  person,  includes  all  injury  to  property  as  well  as  per- 
son, the  pecuniary  loss  to  the  pocket,  as  well  as  the  bodily  loss  of 
bone,  or  flesh  and  blood. 

Indemnity  for  damage  to  the  person,  therefore,  includes  neces- 
sarily compensation  for  everything  then  on,  about  or  belonging  to 
the  person,  as  well  as  for  all  bodily  injuries,  which  are  proved  to  be 
the  result  of  the  accident,  The  faulty  negligence  of  the  defendant, 
in  the  opinion  of  the  jury,  brought  actual  injury  to  plaintiff's  per- 
son at  the  same  time,  when  his  clothing  was  torn,  and  his  money 
lost.  The  plaintiff  also  realizes  loss  and  damage  of  his  money,  all 
traceable  to  the  same  procuring  cause,  and  without  evidence  of  want 
due  care  on  his  part,  and  shows  himself  so  far  partly  entitled  to  the 
beneficial  remedy  of  this  statute. 

The  law  generally  seeks  out,  and  casts  its  burdens  or  penalties 

upon  the  party  who  is  first  and  most  guilty.     Culpable  negligence  is 

the  omission  to  do  something  which  a  reasonable  and  prudent  man 

would  do,  or  the  doing  of  something  which  such  a  man  would  not 

44 


690  TORTS. 

do  under  the  circumstances  surrounding  each  particular  case,  or  it  is 
the  want  of  such  care  as  men  of  ordinary  prudence  would  use  under 
similar  circumstances.  With  these  views,  we  hold  the  defendant 
responsible  equally  for  the  loss  of  plaintiff's  money,  clothing  and 
bodily  vigor. 

The  defendant  being  found  a  wrong-doer,  the  plaintiff  may  be 
regarded  as  bailee  both  of  the  horses  and  money,  and  in  that  capac- 
ity, holding  a  special  property  in  such  chattels,  and  sufficient  to  en- 
title him  to  recover  in  his  name  for  the  entire  injury.  A  bailee, 
having  a  special  property,  may  recover  the  whole  value  of  the  prop- 
erty, holding  the  value  beyond  his  own  interest  in  trust  for  the  gen- 
eral owner,  and  the  judgment  recovered  by  the  bailee  may  be  pleaded 
in  bar  to  any  action  that  might  be  afterwards  brought  by  the  general 
owner  for  the  same  property  (2  Hilliard  on  Torts,  571 ;  King  v. 
Dunn,  21  Wend.  253  ;  Stanley  v.  Gaylord,  1  Cush.  536  ;  Sedgw.  on 
Dam.  569 ;  Barron  v.  Cobleigh,  11  K  H.  560  ;  Littlefield  v.  Bidde- 
ford,  29  Maine,  320). 

It  has  been  recently  decided  that  the  words  "  team  "  or  "  car- 
riage," as  expressed  in  this  statute,  are  meant  to  include  whatever 
animal  or  animals,  drew  or  carried  the  load,  and  their  harness,  also 
the  load  itself  (Connery  v.  Jefferson,  46  N.  H.  521). 

We  admit  the  principle  should  govern  this  case,  that  the  defend- 
ant is  not  liable  for  any  injury  or  loss  of  MThich  a  defect  in  the 
bridge  is  not  the  proximate  or  direct  cause.  In  Vermont,  it  has 
been  held,  under  their  statute,  not  unlike  ours  in  this  State,  that 
where  a  party  in  attempting  to  extricate  his  horse  from  a  hole  in  a 
defective  bridge,  into  which  his  horse  had  stepped,  was  injured  by 
the  animal,  that  he  could  recover  against  the  town,  which  was  bound 
to  repair  the  bridge  (Stickney  v.  Maidstone,  30  Vt.  738).  So  where 
a  traveler,  in  the  exercise  of  ordinary  care  and  prudence,  voluntarily 
leaped  from  his  carriage,  because  of  its  near  approach  to  a  dangerous 
defect  in  the  highway,  and  thereby  sustained  an  injury — the  town 
was  held  liable,  although  the  carriage  did  not  come  in  actual  contact 
with  the  defect  (Lund  v.  Tyngsborough,  11  Cush.  563).  'The  defects 
in  the  bridge  and  highway  were  the  proximate,  not  the  remote 
causes  of  the  injury  or  damage  in  these  cases,  no  more  than  was  the 
want  of  railing  on  the  bridge,  the  proximate  cause  of  the  loss  to  the 
plaintiff  in  the  case  before  us.  Thus  far,  we  are  inclined  to  sustain 
the  rulings  of  the  court,  and  the  special  finding  of  the  jury  giving 
the  actual  damages  of  $578  to  the  plaintiff. 

The  court  also  instructed  the  jury  that  they  might  give  exem- 
plary damages  if,  in  their  judgment,  the  circumstances  warranted 


WOODMAN   v.   NOTTINGHAM.  601 

it  ;  to  which  the  defendant  excepted,  and  the  jury  found  as  exem- 
plary damages  the  sum  of  $100.  We  are  aware  that  exemplary  or 
vindictive  damages  have,  under  instructions  of  the  court,  been  some- 
times given  by  juries  in  this  class  of  actions  against  towns.  In  this 
State,  the  case  Whipple  v.  Walpole  (10  K  H.  130),  is  referred  to 
as  the  leading  authority  to  justify  such  a  verdict.  The  facts  in  that 
case  seem  to  have  made  out  a  case  of  gross  negligence,,  therefore  the 
plaintiff  seems  to  have  been  entitled  to  claim  a  higher  compensation 
than  he  would  have  been  entitled  to  had  the  agents  of  the  town 
exercised  more  diligence  in  meeting  the  just  claims  of  the  plaintiff. 
It  appears  to  us,  the  true  measure  of  damages  should  be  limited  and 
measured  by  the  rule  to  one  full,  actual  compensation  for  the  injury 
received,  neither  more  or  less.  Prof.  Greenleaf,  in  his  able  treatise 
on  this  subject,  well  remarks,  if  the  plaintiff's  injury  be  aggravated 
by  the  criminal  act  or  neglect  of  the  defendant,  by  evidence  of  reck- 
lessness, insolence,  wanton,  or  malicious  or  oppressive  violence,  and 
the  like  on  the  part  of  the  defendant,  all  such  conduct  should  be 
properly  considered  in  estimating  the  plaintiff 's  actual  damage,  and 
objects  in  making  up  a  larger  sum  in  the  form  of  punitive  or  vin- 
dictive damages  (2  Greenl.  Ev.  note  to  §  253  ;  also  §  273).  In  a 
recent  English  case  (Emblem  v.  Myers,  6  Hurls.  Sz  N.  51),  Justice 
Pollock  says  :  "  I  do  not  say  that  in  actions  for  negligence  there 
should  be  vindictive  damages,  such  as  are  sometimes  given  in  actions 
of  trespass,  but  the  measure  of  damages  should  be  different  accord- 
ing to  the  nature  of  the  injury,  and  the  circumstances  with  which  it 
is  accompanied."  So  in  New  York,  in  the  case  of  Wallace  v.  Mayor 
of  New  York  (2  Hilton,  440). 

The  court  there  say,  "  that  where  the  circumstances  show  there 
was  a  deliberate,  preconceived,  or  positive  intention  to  injure,  or 
that  reckless  disregard  of  the  safety  of  person  or  property,  which  is 
equally  culpable,  vindictive  damages  are  allowable ;  but  in  cases  of 
negligence,  simply,  the  rule  is  to  allow  the  actual  damages  only. 
The  award  of  smart  money  in  mere  cases  of  negligence  should  not 
be  allowed"  (Moody  v.  McDonald,  4  Cal.  297;  Morford  y.  Wood- 
worth,  7  Ind.  83  ;  14  Louis.  806). 

It  appears  that  the  negligence  found  here  is  not  of  that  aggra- 
vated character  which  justifies  the  allowance  of  exemplary  damages  ; 
nor  do  we  believe  it  to  be  necessary  or  proper  in  actions  generally 
against  towns,  under  our  statute,  to  instruct  the  jury  to  allow  vin- 
dictive damages  eo  nomine  ;  for  it  cannot  be  presumed  that  towns, 
in  cases  of  this  kind,  are  influenced  by  malice  when  accidents  of  this 
nature  occur  ;  and  if  the  circumstances  of  any  case  show  even  gross 


692  TORTS. 

negligence,  it  appears  to  us  to  be  enough  for  the  jury,  in  making  up 
their  verdict,  to  give  all  the  actual  damages  the  plaintiff  has  suf- 
fered, and  no  more  ;  nor  do  we  think  that  the  legislature  ever 
contemplated  anything  more  than  a  full  indemnity  for  the  injury 
received  to  the  person  or  property,  by  their  statute  regulating  this 
subject. 

Hence  we  overrule  the  case  of  Whipple  v.  "VValpole  as  a  case  of 
authority  on  this  point.  We  infer  from  the  fact  that  our  present 
statute  gives  less  damages  than  were  allowed  by  the  provisional  act 
on  this  subject,  that  the  legislature  has  actually  intended  to  restrict 
them  to  a  compensation  equal  to  the  injury  in  all  cases.  The  vin- 
dictive or  exemplary  damages  specially  found  by  the  jury  will  be 
deducted  from  the  verdict  in  this  case,  and  judgment  is  rendered  on 
the  verdict  for  the  balance,  as  found  by  the  jury. 


Flowage  ;  Allowance  for  Benefit. 


SUPREME   JUDICIAL    COURT,    MASSACHUSETTS. 

[1851.]     Luther  v.  The  Wjnnisimmet  Co.  (9  Cush.  171). 

In  an  action  for  damages,  occasioned  by  the  filling  up  by  the  defendants  of  their  land, 
lying  adjacent  to  that  of  the  plaintiff,  whereby  the  free  flow  of  water  off  the  plaint- 
iff's land,  as  formerly  existing,  had  been  obstructed,  instructions  to  the  jury  that 
"  they  should  take  into  consideration  the  evidence  on  both  sides  bearing  on  this  point, 
and,  if  they  were  satisfied  that  the  filling  up  had  actually  benefited  the  plaintiff's 
estate  in  any  particular,  they  would,  in  assessing  the  damages,  make  an  allowance  for 
such  benefit,  and  give  the  plaintiff  such  sum  in  damages  as  they  found  upon  the  evi- 
dence would  fully  indemnify  and  compensate  him  for  all  the  damage  he  had  actu  .lly 
sustained,"  are  correct. 

This  was  an  action  of  trespass  on  the  case,  tried  before  Bigelow, 
J.,  in  this  court.  The  writ  contained  three  counts.  The  first  two 
alleged  the  obstruction  by  the  defendants  of  an  ancient  water-course, 
running  through  the  plaintiff's  land  and  land  of  the  defendants ;  and 
the  third  alleged  a  right  in  the  plaintiff  to  have  the  water,  at  all  times, 
flow  off  his  land  and  run  through  the  defendants'  land,  as  appurtenant 
to  the  premises  described  in  the  writ.  The  defendants  pleaded  the 
general  issue. 

Evidence  was  given  as  to  the  title  to  the  premises  in  question. 


LUTHER   v.   THE   WINX1SIMMET   CO.  693 

It  further  appeared  that,  in  October,  1849,  the  defendants  tilled 
up  so  much  of  the  pond  as  was  on  their  own  land,  and  built  a  street 
through  the  same  ;■  and  evidence  was  offered  that  thereby  the  water- 
course was  obstructed,  so  that,  in  November,  1849,  and  on  several 
subsequent  occasions,  the  land  and  houses  of  the  plaintiff,  situate  on 
the  premises  described,  were  overflowed  and  damaged  by  water 
standing  thereon. 

The  defendants  offered  evidence  which  proved,  and  it  was  ad- 
mitted at  the  trial,  that  Thomas  Williams  originally  owned  all  the 
premises  belonging  to  the  plaintiff  and  defendants,  and  that,  in  1831, 
he  conveyed  to  Fay  and  others  the  entire  premises,  including  the 
land  and  pond  above  described ;  that  Fay  and  others,  by  the  deed 
above  mentioned,  conveyed  the  premises  described  in  the  writ  to  the 
plaintiff,  in  which  deed  there  was  no  grant  or  conveyance  of  any 
water-course  or  right  of  drainage,  the  same  being  a  common  warranty 
deed,  conveying  the  described  premises  with  their  appurtenances, 
etc. ;  that  Fay  and  others,  on  the  1st  of  October,  1833,  conveyed  to 
the  defendants  all  the  land  and  premises  granted  by  Williams,  except 
the  tract  so  conveyed  to  the  plaintiff,  and  some  small  parcels  previ- 
ously conveyed  to  other  persons ;  so  that  both  the  plaintiff  and  de- 
fendants claimed  under  a  common  grantor,  by  deeds  bearing  date 
within  twenty  years  prior  to  the  date  of  the  writ. 

The  defendants  offered  evidence  that  the  pond  was  not  fed  by  a 
water-course  or  running  stream,  but  was  a  mere  hollow  or  low  place, 
into  which,  in  seasons  of  heavy  rains  or  melting  snow,  the  water  col- 
lected from  the  surrounding  higher  lands,  where  it  became  stagnant ; 
that  there  was  no  outlet  thereto,  through  which  the  water  usually 
ran ;  that  there  was  no  water-course  or  stream  of  water,  or  place  where 
water  usually  flowed,  running  through  the  plaintiff's  land,  and  never 
had  been ;  that  the  plaintiff's  land,  lying  easterly  of  the  pond,  was 
part  of  a  tract  of  low  land  which  sloped  gradually  towards  the  de- 
fendants' land,  at  the  rate  of  about  nine  inches  in  a  hundred  feet, 
except  on  the  northerly  side,  where  the  land  was  considerably  higher; 
and  that  all  the  water  which  came  into  the  pond  from  the  plaintiff's 
land  was  merely  the  common  surface  water  which  ran  off  in  times  of 
heavy  rains  or  freshets,  not  confined  to  any  particular  channel,  but 
spread  over  the  entire  face  of  the  land. 

The  defendants  also  put  in  a  petition  to  the  board  of  health  of 
the  town  of  Chelsea,  dated  in  the  summer  of  1819,  signed  by  the 
plaintiff  and  others,  praying  to  have  the  pond  filled  up.  as  a  nuisance  : 
and  a  vote  of  the  board  of  health  thereon,  directing  the  defendants 
to  abate  the  same  as  a  nuisance ;  and  it  was  proved  that  the  filling 


694  TORTS. 

up  complained  of  by  the  plaintiff  was  done  by  the  defendants  in  pur- 
suance of  such  order  of  the  board  of  health,  with  the  approbation  of 
the  chairman  and  other  members  of  the  board  ;  and  that  the  plaint- 
iff was  sometimes  present  while  the  work  was  advancing,  and  made 
no  objection. 

The  plaintiff  offered  evidence  to  show  that,  by  such  filling  up  and 
obstruction,  his  land  and  houses  had  been  injured  and  greatly  dimin- 
ished in  value. 

To  meet  this  evidence,  the  defendants  called  witnesses  to  prove 

that  but  little  or  no  injury  had  been  occasioned  to  the  plaintiff's 

houses  and  land,  and  that  the  same  had  been,  in  fact,  benefited  and 

increased  in  value  thereby. 

*  *  *  * 

On  the  question  of  damages,  the  judge  instructed  the  jury  that 
they  should  take  into  consideration  the  evidence  on  both  sides  bear- 
ing on  this  point ;  and  if  they  were  satisfied  that  the  filling  up  had 
actually  benefited  the  plaintiff's  estate,  in  any  particular,  they  would, 
in  assessing  the  damages,  make  an  allowance  for  such  benefit,  and 
give  the  plaintiff  such  sum  in  damages  as  they  found,  upon  the  evi- 
dence, would  fully  indemnify  and  compensate  him  for  all  the  damage 
he  had  actually  sustained. 

The  jury  found  a  verdict  for  the  defendants ;  and  the  plaintiff, 
feeling  aggrieved  by  the  foregoing  rulings  and  instructions,  alleged 
exceptions  thereto. 

By  the  Court. — The  instructions  were  strictly  correct,  and  well 
adapted  to  the  case. 

Exceptions  overruled. 


Tort;    Profits;    Case   for   Building   Dam,   thereby   injuring 
Plaintiff's   Land. 


SUPREME    COURT,    RHODE    ISLAND. 

Simmons  v.  Brown  (5  B.  I.  299). 

In  an  action  of  the  case  by  the  owner  and  operator  of  a  cotton  mill,  driven  by  water, 
against  the  owner  of  a  mill  on  the  same  stream,  to  recover  damages  for  the  unlaw- 
ful raising  of  a  dam  across  the  stream  below,  and  interrupting-  the  operation  of  the 
cotton  mill  by  backwater  and  thereby  diminishing  the  profits  of  the  plaintiff,  evi- 
dence of  the  profits  of  manufacture,  lost  by  the  plaintiff  from  the  interruption,  may 
be  submitted  to  the  jury  as  a  basis  upon  which  to  estimate  the  damages  of  the 
plaintiff,  if  not  as  the  measure  of  them. 


SIMMONS   v.   BROWN.  695 

This  was  an  action  of  the  case,  brought  by  the  plaintiff,  as  the 
owner  of  a  water  privilege  and  cotton  mill  thereon,  in  Johnston, 
against  the  defendants,  husband  and  wife,  for  erecting  a  dam  across 
the  stream  below,  on  the  land  of  the  wife,  and  thereby  casting  back- 
water upon  the  mill  of  plaintiff;  the  declaration  claiming  damages  for 
the  loss  of  the  profits  of  his  manufacture  by  the  plaintiff,  during  the 
period  of  time  set  forth,  in  which  he  was  prevented  by  the  obstruc- 
tion from  using  his  mill.  One  count  in  the  declaration  alleged,  that 
the  dam  of  the  defendants  had  been  reduced  under  a  decree  of  this 
court,  in  equity,  upon  a  bill  filed  against  them  by  the  plaintiff;  the 
action  being  now  brought  to  recover  the  damages  caused  by  the  un- 
lawful raising  of  the  dam. 

At  the  trial  of  the  action  (which  was  brought  originally  in  this 
court),  at  the  September  term,  1857,  before  Bkayton,  J.,  with  a  jury, 
the  plaintiff,  to  prove  his  damages,  offered  under  the  general  issue, 
amongst  other  things,  to  prove  the  profits  which  he  might  have  made 
upon  the  cotton  goods  which  he  could  have  manufactured  at  his  mill, 
had  it  not  been  for  the  backwater  complained  of,  and  which  he  was, 
by  the  backwater  caused  by  the  defendants,  prevented  from  making. 
This  evidence  was  objected  to  by  the  defendants  ;  but  notwithstand- 
ing, was  permitted  by  the  court  to  pass  to  the  jury,  for  the  purpose 
of  enabling  the  jury  to  ascertain  the  loss  and  damage  which  the 
plaintiff  had  sustained  by  means  of  the  injuries  complained  of  in  the 
declaration. 

The  defendants  also  requested  the  court  to  charge  the  jury,  that 
Abby  Brown,  one  of  the  defendants,  being  owner  in  fee  of  the  land 
on  which  the  dam  complained  of  was,  but  the  premises  being  in  the 
possession  of  her  husband,  could  not,  as  a  married  woman,  be  liable 
in  this  action,  and  that  no  verdict  could  be  rendered  against  her ; 
which  charge  the  court  refused  to  give. 

The  defendants  having  duly  excepted  at  the  trial,  and  a  verdict 
having  been  rendered  against  them  for  $2,500  damages,  now  moved 
for  a  new  trial,  on  account  of  the  admission  of  the  testimony,  and 
refusal  to  charge,  as  aforesaid. 

*  Brayton,  J. — The  first  ground  for  a  new  trial,  assigned  by  the 
defendants  is,  that  the  court  admitted  evidence  to  show  the  profits 
which  the  plaintiff  might  have  made  upon  the  goods,  which,  but  for 
the  injuries  complained  of,  he  might  have  manufactured,  and  which 
he  was  prevented  from  manufacturing  by  such  injuries. 

The  action  was  brought  to  recover  damages  caused  by  the  raising, 


The  chief  justice  having  been  of  counsel,  did  not  sit  in  this  ease. 


696  TORTS. 

by  the  defendants,  of  their  dam  below  the  plaintiff's  mill ;  causing  the 
water  to  flow  upon  the  plaintiff's  wheel,  and  impeding  the  operation 
of  his  mill;  and  the  plaintiff  claims  damages  for  the  loss  of  profits  in 
the  business  which  he  carried  on  there,  of  manufacturing  cotton  goods. 
The  plaintiff's  mill  was  fitted  to  occupy  all  the  water-power  which 
belonged  to  the  plaintiff,  with  sufficient  machinery  for  that  purpose. 
By  a  bill  in  equity,  filed  by  the  plaintiff  against  the  defendants,  alleg- 
ing this  nuisance,  the  right  of  the  defendants  to  maintain  this  dam 
had  been  in  controversy ;  and  by  a  decree  of  the  court  the  dam  was 
reduced  to  its  present  height,  and  this  action  was  brought  to  recover 
the  damages  accrued  to  the  plaintiff  before  the  reduction  of  the  dam, 
and  after  the  raising  of  it.  In  assessing  the  plaintiff's  damages  on 
the  trial  of  the  action,  the  plaintiff  was  allowed  to  offer  evidence  to 
show  the  additional  quantity  of  goods  which  the  mill  was  capable  of 
making,  and  probably  would  have  made,  had  the  wheel  been  unob- 
structed by  the  dam,  the  value  of  those  goods  when  made,  the  cost  of 
making,  and  the  prices  which  such  goods  brought  in  the  market,  dur- 
ing the  time;  thus  showing  the  general  profit  of  the  business  which 
the  plaintiff  carried  on. 

The  defendants  objected  to  the  admission  of  this  evidence  on  the 
ground  that  the  plaintiff  was  not  entitled  to  recover  the  profits  of  the 
business  which  he  might  have  done  with  this  additional  water-power, 
used  by  the  defendants,  but  was  entitled  only  to  a  reasonable  and  fair 
rent,  for  the  use  of  it  by  the  defendants.  The  objection  was  over- 
ruled ;  and  the  question  is,  whether  this  evidence  was  properly  ad- 
missible. 

The  plaintiff  is  to  be  made  good  for  all  the  damages  which  he  has 
suffered  from  the  injurious  act  of  the  defendants;  and,  by  the  gen- 
eral rule  in  actions  of  trespass,  for  all  the  damages  which  result 
directly  and  necessarily  from  the  proximate  and  natural  consequences 
of  the  act  complained  of,  as  distinguished  from  remote,  uncertain,  or 
contingent  results  (2  Greenl.  on  Ev.  256,  261).  For  this  reason,  evi- 
dence as  to  profits,  as  a  general  rule,  is  rejected ;  because,  generally, 
they  are  uncertain  and  contingent ;  depending  upon  other  circum- 
stances than  the  injurious  act  of  the  defendants,  and  not  the  natural 
result  of  it.  Nevertheless,  the  general  rule  is  subject  to  many  excep- 
tions ;  and  it  will  be  seen  from  the  cases  upon  this  subject,  that  where- 
ever  a  loss  of  profits  is  the  natural  and  necessary  result  of  the  act 
charged, — such  as  the  party  probably  would  have  made,  not  what  by 
chance  he  might  have  made,  but  what  any  prudent  man  must  natu- 
rally have  made, — evidence  has  been,  if  not  always,  most  usually 
admitted  as  to  them. 


SIMMONS   t.   BROWN.  69  T 

In  actions  for  breaches  of  contract,  the  profits  resulting  to  the 
plaintiff  from  the  contract  which  he  has  entered  into  and  which  must 
naturally  come  to  him  if  it  be  performed,  are  allowed  him,  as  the 
measure  of  his  damages,  if  it  be  broken  by  the  defendants,  and  he  is 
thereby  deprived  of  them.  In  Masterton  v.  Mayor  of  Brooklyn  (7 
Hill,  61),  which  was  on  a  contract  to  furnish  marble  for  the  city  hall 
of  that  city,  it  was  held  that  the  plaintiff  was  entitled  to  recover  what 
he  would  probably  have  made  if  the  contract  had  been  performed, 
viz. :  the  difference  between  the  cost  to  him  of  delivering  the  marble, 
and  the  price  which,  by  the  contract,  he  was  to  receive.  In  this  case, 
Nelson,  C.J.,  says :  "When  the  books  speak  of  profits  as  too  remote 
and  uncertain  to  be  taken  into  the  account  in  estimating  the  damages, 
they  have  reference,  usually,  to  dependent  and  collateral  engage- 
ments entered  into  in  faith  of,  and  in  expectation  of  the  execution  of 
the  principal  contract;  but  profits,  which  are  the  direct  fruit  of  the 
contract  broken,  stand  upon  a  different  footing.  They  are  part  of  the 
contract  itself."  In  Philadelphia,  "Wilmington  &  Baltimore  Railroad 
Co.  v.  Howard  (13  How.  307),  there  was  a  similar  contract.  It  was 
to  furnish  certain  building  materials  for  the  road.  Upon  the  breach 
of  this  contract,  it  was  held,  that  in  estimating  the  damages,  the  dif- 
ference between  the  contract  price  and  the  cost  price  to  the  plaintiff, 
was  the  measure  of  damages  ;  and  the  court  say,  "  That  the  profits 
were  the  inducement  to  the  contract,  the  consideration  for  which  the 
plaintiff  contracted  on  his  part,  and  which  are  lost  by  the  breach  of  it 
by  the  defendant,  and  must  be  made  good.  The  profits  in  this  case 
are  not  only  admissible  in  evidence,  but  are  the  measure  of  damages.'' 

In  McNeill  v.  Reid  (9  Bing.  68),  the  contract  was,  that  if  the 
plaintiff  would  not  accept  the  place  of  master  of  a  ship  in  the  East 
India  service,  for  a  voyage  to  India,  the  defendants  would  admit  him 
as  a  partner  in  a  firm,  to  the  extent  of  one-fourth  of  the  profits.  It 
was  held,  that  the  plaintiff  was  entitled  to  recover  the  value  of  such  a 
voyage  to  him, — what  he  would  reasonably  and  probably  have  real- 
ized from  it,  had  he  proceeded  upon  the  voyage ;  and  evidence  was 
offered  as  to  the  usual  amount  realized  from  such  voyages  ;  and  the 
jury  assessed  the  damages  at  5001.  The  court  refused  to  disturb  the 
verdict.  This  amount  was  not  allowed,  however,  as  the  measure  of 
damages  ;  but  as  Bosanquet,  J.,  said,  "as  an  ingredient  for  estimating 
the  value  set  upon  the  contract  by  the  parties/'  In  Waters  v.  Tow- 
ers (20  Eng.  L.  &  Eq.  410),  the  action  was  for  breach  of  contract  for 
the  non-delivery  of  certain  machinery,  within  a  reasonable  time  ;  and 
special  damages  were  laid,  that  the  plaintiffs  had  been  prevented  from 
completing  their  contract  witli  a  third  person,  whereby  they  had  lost 


698  TORTS. 

the  profits  which  they  would  have  made,  had  they  completed  it. 
Evidence  as  to  this  last  contract  was  admitted,  and  of  the  advantage 
to  the  plaintiff  from  its  performance.  It  was  held,  that  the  evidence 
as  to  the  profits  was  properly  admitted ;  and  that  the  jury  might 
assess  damages  to  the  amount  of  them,  though  they  were  not  bound 
to  do  so ;  and  the  court  said,  if  reasonable  evidence  is  given  that  the 
amount  of  profits  would  have  been  made,  if  the  defeudant  had  per- 
formed his  contract,  the  damages  may  be  assessed  accordingly  ;  and 
this,  though  the  second  contract  was  one  which  could  not  have  been 
enforced  against  the  plaintiff  on  the  ground  of  the  statute  of  frauds. 

These  cases  are  all  for  breaches  of  contract.  In  the  first  two,  the 
the  profits  were  not  only  allowed  to  be  given  in  evidence,  but  are 
made  the  measure  of  damages.  In  the  last,  though  the  evidence  was 
held  to  be  properly  admitted  as  the  basis  for  estimating  the  damages, 
the  profits  were  not  held  to  be  the  measure  of  damages ;  and  it  was 
left  to  the  jury,  with  this  basis,  to  estimate  them.  There  is  nothing 
in  the  term  "  profits "  that  excludes  their  being  given  in  evidence, 
more  than  any  other  item  of  damages ;  but  proof  of  them  is  made  to 
depend,  like  all  other  proof  in  relation  to  damages,  upon  the  fact  that 
the  loss  of  them  is  the  natural  and  direct  result  of  the  injury,  and  not 
a  remote  consequence ;  and  the  language  of  the  court,  in  the  last  case, 
is  significant :  "  that  if  reasonable  proof  be  given  that  the  plaintiff 
would  have  made  the  profits,  that  is,  that  those  profits  were  the  direct 
result  of  the  performance  by  the  defendant,  and  the  loss  the  direct 
result  of  the  breach,  it  was  sufficient  to  warrant  a  recovery  of  them." 

There  are  other  cases,  not  upon  contracts,  where  profits  are  allowed 
to  be  given  in  evidence.  Tarleton  v.  McGawdy  (Peake,  N.  P.  C.  205) 
was  an  action  on  the  case  for  firing  upon  negroes,  on  the  coast  of 
Africa,  near  the  trading-post  of  the  plaintiff,  by  which  the  negroes 
were  deterred  from  trading  with  him,  and  there  was  a  consequent  loss 
by  the  plaintiff,  of  the  trade  with  them.  The  plaintiff  was  allowed  to 
recover.  Whatever  was  lost  to  the  plaintiff  must  have  been  profits  ; 
for  upon  this,  only,  depended  the  value  of  the  trade  which  he  had 
lost.  The  value  of  that  trade  to  him  wras  allowed  to  be  put  in  evi- 
dence. It  must  have  been  admitted,  on  the  ground  that  the  loss  of 
profit  and  of  the  trade  was  the  direct  and  natural  result  of  the  unlaw- 
ful act  of  the  defendant.  In  Ingram  v.  Lawson  (6  Bing.  [N.  C]  212) 
the  action  was  for  libel  in  publishing  that  the  plaintiff's  vessel,  then 
fitted  and  ready  for  sea,  for  freight,  was  unseaworthv,  and  had  been 
sold  to  Jews  to  take  out  convicts.  The  plaintiff  was  allowed  to  prove 
the  average  profits  of  such  a  voyage  as  was  broken  up ;  and  upon  a 
motion  for  a  new  trial,  the  court  said,  that  the  evidence  was  not  ad- 


SIMMONS   v.    BROWN.  699 

mitted  as  the  measure  of  damages,  but  only  that  the  jury  might  see 
the  nature  of  the  business  and  the  general  profits.  Coltmax,  J.,  said  : 
"  The  jury  must  have  some  mode  of  estimating  the  damages:  ami 
they  could  not  be  in  a  condition  to  do  so  unless  they  knew  something 
of  the  plaintiff's  business  and  the  general  return  of  his  voyages." 
White  v.  Mosely  (8  Pick.  356)  was  an  action  of  trespass  for  destroying 
part  of  plaintiff's  mill-dam,  and  thereby  interrupting  the  use  of  the 
plaintiff's  mill,  whereby  he  lost  the  profit  of  the  same.  Damages 
were  allowed  in  this  case  for  diminution  of  the  profits  ;  and  the  court 
say,  "  the  interruption  of  the  use  of  the  mill  and  diminution  of  the 
profit  were  alleged  and  proved  ;  and  we  think  this  was  right.  The 
plaintiff  is  entitled  to  recover  for  all  damages." 

In  Williams  v.  Barton  (13  Louis.  404)  the  court  use  this  language 
in  relation  to  contract :  "  The  damages  for  breach  of  contract  are  those 
which  are  incidental,  and  caused  by  the  breach ;  and  may  reasonably 
be  supposed  to  enter  into  the  contemplation  of  the  parties  at  the  time 
of  the  contract."  There  does  not  seem  to  be  any  solid  ground  for 
departing  from  the  principle  which  governs  breaches  of  contract  in 
this  respect,  or  suits  for  damages  occasioned  by  torts.  If  the  damages 
be  such  as  the  party  committing  might  reasonably  conclude  would 
result  from  the  act,  since  every  man  is  presumed  to  intend  the  natu- 
ral and  probable  result  of  the  act  which  he  designedly  commits,  there 
seems  no  reason  to  exclude  them.  There  is  therefore  no  ground  for 
excluding  profits  simply  because  they  are  profits ;  but  the  loss  of  them 
must  be  governed  by  the  same  rule  as  other  damages.  If  the  loss  of 
of  them  be  the  direct  and  necessary  result  of  the  defendant's  acts, 
whether  by  breach  of  contract  or  tortious  act,  it  can  make  no  differ- 
ence, the  damages  are  equally  proximate  and  certain,  and  are  no  more 
contingent  in  the  one  case  than  in  the  other;  neither  more  or  less 
remote. 

The  evidence  objected  to,  we  think,  was  properly  admissible  to  be 
weighed  by  the  jury  in  estimating  the  plaintiff's  damages  in  this  case  ; 
and  to  determine  what  the  plaintiff  would  have  made  had  he  not  been 
prevented  by  the  act  of  the  defendants.  No  objection  is  here  made 
to  any  instruction  given  to  the  jury  in  reference  to  their  consideration 
of  the  evidence  submitted. 

It  is  claimed  by  the  defendants  that  the  mode  of  estimating  the 
damages,  and  the  only  legal  mode  is,  to  ascertain  the  amount  of  the 
water-power  which  is  obstructed,  and  of  which  the  plaintiff  is  de- 
prived, and  to  ascertain  the  fair  reasonable  rent  for  so  much  power, 
and  to  make  this  amount  of  rent  the  measure  of  damages.  If  this 
were  matter  of  contract,  and  the  plaintiff  were  suing  for  the  use,  this 


700  TORTS. 

might  be  the  proper  rule.  But  it  is  not  the  purpose  of  this  suit,  and 
cannot  be,  till  the  plaintiff  chooses  to  treat  the  defendant  as  the  right- 
ful occupier  of  his  fall.  The  plaintiff  is  the  owner  of  the  whole  fall, 
and  of  the  mill,  which  he  himself  is  operating  for  profit.  He  does 
not  wish,  and  would  not  consent,  to  lease  any  part  of  it.  It  would 
be  an  injury  to  his  business  to  do  so.  To  receive  merely  a  fair  rent 
for  the  power  of  which  he  is  wrongfully  deprived,  would  not  make 
his  business  equal  to  what  it  would  be,  to  have  the  power  entire ;  his 
business  being  adapted  to  the  use  of  the  whole,  mere  rent  would  not 
make  him  whole.  He  cannot  be  made  good  without  treating  him  not 
merely  as  landlord,  but  as  tenant.  As  landlord,  he  is  entitled  to  a  fair 
and  reasonable  rent.  But  suppose  he  were  a  tenant,  paying  that  rea- 
sonable rent,  is  it  sufficient  to  say  that  his  rent,  as  to  so  much  of  the 
power  as  he  cannot  use,  and  for  which  he  is  nevertheless  bound  to 
pay,  shall  be  paid  for  him  ?  If  this  were  the  rule,  we  might  expect 
to  find  much  of  this  compulsory  kind  of  underletting, — hiring  water- 
power  against  the  occupant's  will.  It  is  no  sufficient  answer  to  say 
that  further  damages  are  not  proximate,  or  that  they  are  not  the 
natural,  probable,  direct  result  of  the  act. 

(The  remainder  of  the  opinion  does  not  relate  to  the  question  of 
damages.) 

Judgment  upon  the  verdict. 

Note. — As  to  the  proper  methods  of  ascertaining  the  damage  to  the  mill 
property  of  a  riparian  owner,  by  depriving  him  of  his  regular  supply  of  water, 
see  Holden  v.  Lake  Company,  53  N.  H.  552. 


Injury  to  Personal  Property  ;  Different  Measures  of  Damages  ; 

Province  of  Jury. 


SUPREME    COURT,    ILLINOIS. 

[1862.]  Ottawa  Gas  light  &  Coke  Co.  v.  Graham  (28  111.  73). 

In  an  action  on  the  case  for  injury  to  property,  and  especially  to  a  well, by  rendering  the 
water  impure,  all  the  circumstances  may  be  proved  and  considered ;  and  to  ascer- 
tain the  damages,  the  cost  of  furnishing  water  to  the  family,  having  regard  1o 
quality  and  quantity,  may  be  taken  into  the  account  in  the  estimate — also,  the  dif- 
ference in  value  of  the  property,  owing  to  the  erection  of  gas  or  other  offensive 
structures  in  its  vicinity. 

Jurors  may  be  instructed  to  weigh  evidence  by  the  light  of  their  general  knowledge  and 


OTTAWA   GAS-LIGHT   &   COKE   CO.    v.   GRAHAM.  701 

experience  as  applied  to  the  events  and  transactions  of  life,  but  it  is  erroneous  to 
instruct  them  to  apply  special  knowledge  or  circumstances  connected  with  the 
case  in  forming  their  verdict ;  unless  the  jurors  shall  have  been  sworn  as  witnesses. 

This  was  an  action  on  the  case  brought  by  the  plaintiff  below 
against  the  defendant  below  for  injury  to  the  water  of  plaintiff's 
well,  occasioned  by  defendant  having  "  suffered  to  flow  from  its  gas- 
works, and  to  be  placed  in  and  around  and  near  the  same,  certain 
noxious  and  offensive  substances  and  materials  used  in  and  about  the 
manufacture  of  gas  and  coke,  and  also  certain  oily,  tarry,  resinous 
gaseous  and  deleterious  substances  and  materials  so  used  in  said  man- 
ufacture, which  said  substances  and  materials  were  absorbed  by  and 
entered  into  the  earth,  and  permeated,  passed  and  flowed  along  and 
through  the  earth  and  into  said  well  of  water  of  said  plaintiff,  and 
mingling  with  the  water  with  which  said  well  was  supplied,  spoiled 
the  water  of  said  well." 

The  plaintiff  also  complained,  in  his  declaration,  of  certain  smells, 
smokes,  etc.,  caused  by  the  manufacture  of  gas,  etc. 

The  defendant  pleaded  the  general  issue,  and  a  special  plea  deny- 
ing that  defendant  suffered  to  flow  from  its  gas-works  and  to  be  de- 
posited on  and  around  the  same,  certain  noxious,  tarry,  resinous,  gas- 
eous substances,  and  that  said  substances  permeated  through  the 
ground  into  plaintiff's  well. 

Certain  instructions  to  the  jury  at  the  trial,  which  were  excepted 
to  by  the  defendant's  counsel,  sufficiently  appear  in  the  opinion  of  the 
court. 

AValker,  J. — On  the  trial  below,  appellant  offered  to  prove  how 
much  it  would  cost  to  obtain  a  supply  of  good  water,  by  purchasing  a 
right  from  the  water  company ;  or  by  the  construction  of  a  cistern. 
The  court  refused  to  permit  the  introduction  of  this  evidence,  and 
that  decision  is  assigned  as  one  of  the  errors  on  this  record.  If  the 
erection  of  the  gas-works  produced  injury  to  appellee's  well,  and  pol- 
luted the  water,  he  has  the  undoubted  right  to  recover  a  sum  suffi- 
cient to  cover  any  loss  he  has  thereby  sustained.  The  company  has 
the  right  to  so  use  their  franchise  as  to  produce  no  injury  to  the  rights 
of  others.  When  they  obtained  their  charter,  there  was  an  implied 
duty  imposed,  that  they  should  not  in  its  exercise  deprive,  or  even 
incommode  others  in  the  exercise  of  their  rights,  without  becoming- 
liable  to  respond  in  damages.  In  ascertaining  the  true  measure  of 
such  damages,  all  the  circumstances  connected  with  the  injury  are 
proper  to  be  considered  by  the  jury. 

In  this  case  it  may  be  a  fair  measure  of  damages,  to  ascertain  the 
cost  of  furnishing  a  sufficient  quantity  of  water  equally  pure  with  that 


702  TORTS. 

which  supplied  the  plaintiff  below  from  his  well  before  its  injury  by 
the  gas-works.  When  that  cost  is  ascertained,  and  the  cost  of  keep- 
ing the  conductors  and  other  machinery  in  repair,  the  allowance  of 
such  a  sum  as  would  produce  an  annual  interest  sufficient  to  furnish 
the  water  from  the  company  and  make  the  repairs,  would  be  a  fair 
measure  of  damages.  But  if  the  supply  when  thus  obtained,  was  in- 
ferior in  salubrity,  or  taste,  that  should  also  be  taken  into  account. 
So  if  there  was  danger  that  it  would  not  be  permanent.  Property 
furnished  with  an  inadequate  supply,  or  with  an  abundance  of  water 
of  inferior  quality,  would  be  of  less  value  than  if  supplied  with  an 
abundance  of  water  of  good  quality.  If  a  resort  to  a  cistern  is  the 
only  means  of  replacing  the  proper  supply  of  water,  then  its  quality 
should  be  taken  into  consideration,  and  if  inferior  in  quality,  that 
fact  should  have  its  due  weight.  In  this  view  of  the  case,  we  are  of 
the  opinion  that  this  evidence  was  improperly  rejected. 

Another  means  of  arriving  at  the  damages,  would  be  to  ascertain 
the  depreciation  of  the  value  of  the  property  by  reason  of  the  erection 
of  the  gas-works.  To  ascertain  how  much  less  the  property  would 
sell  for  in  consequence  of  the  erection,  than  if  it  had  not  been  made. 
And  in  ascertaining  that  fact,  all  the  circumstances  which  might  show 
a  depreciation  in  value  should  be  considered.  If  the  property  would 
sell  for  the  same  amount,  independent  of  a  rise  in  similar  property, 
then  there  would  be  no  loss,  but  if  it  would  not,  then  the  difference 
would  be  the  damages  sustained. 

It  is  also  insisted,  that  the  court  erred  in  the  qualification  annexed 
to  appellee's  first  instruction.  By  it  the  jury  were  informed,  that  in 
making  an  estimate  of  the  damage?,  they  might  exercise  their  judg- 
ment upon  the  facts  in  proof,  by  connecting  them  with  their  own 
knowledge  and  experience.  If  this  was  designed  to  refer  to  their 
general  knowledge  as  intelligent  business  men,  it  was  correct.  Jurors, 
when  the  evidence  is  heard,  must  test  its  truth,  its  weight,  and  what 
it  all  proves,  by  their  knowledge  and  judgment,  derived  from  expe- 
rience, observation  and  reflection,  They  are  not  bound  to  regard  evi- 
dence precisely  as  given,  but  must  consider  its  truth  and.  weight  by 
their  knowledge  of  men,  the  business  affairs  of  life,  together  with  the 
motives  which  influence  men.  These  are  all  legitimate  and  necessary 
means  of  arriving  at  the  truth,  and  if  the  jury  so  understood  the  in- 
struction, it  was  proper. 

If,  however,  the  jury  understood  it  to  apply  to  special  circum- 
stances and  facts  connected  with  the  case,  it  would  be  calculated  to 
mislead.  In  forming  their  verdict,  the  jury  must  be  governed  by  the 
evidence  admitted  in  the  case.     If  a  juror  has  knowledge  of  facts  not 


HOLYOKE  v.  GRAND  TRUNK  RAILROAD  CO.         703 

in  evidence,  they  have  no  right  to  consider  them  in  making  up  a  ver- 
dict. Before  they  can  take  these  into  consideration,  the  juror  should 
be  sworn  and  testify  to  the  facts,  precisely  as  any  other  witness.  The 
party  against  whom  it  may  operate,  has  the  right  to  cross-examine  the 
witness,  and  must  have  an  opportunity  of  meeting  it  with  rebutting 
evidence.  This  instruction  was  liable  to  be  understood  by  the  jury, 
as  authorizing  them  to  act  upon  facts  not  in  evidence,  but  within  their 
knowledge.  It  should  have  been  modified  so  as  to  exclude  such  a 
right,  and  so  as  to  limit  their  action  to  their  general  knowledge 
and  experience,  and  this  is  the  extent  to  which  the  case  of  the  City 
of  Chicago  v.  Major  (18  111.  349)  proceeds. 

The  judgment  of  the  court  below  is  reversed,  and  the  cause  re- 
manded.* 

Judgment  reversed. 

Note. — In  an  action  against  a  municipal  corporation,  for  injury  to  the 
plaintiff  in  his  business  as  a  grocer,  by  the  negligent  and  dilatory  construction 
of  a  sewer,  in  consequence  of  which  access  to  hi.-:  premises  was  obstructed,  it  was 
held  by  the  Supreme  Court  of  Minnesota,  that  he  could  not  recover  for  the  loss 
of  prospective  profits.  Sumner  v.  City  of  St.  Paul,  23  Minn.  408  (1877).  This 
decision  was  on  the  ground  of  the  uncertainty  in  ascertaining  the  description  of 
damage.  But  compensation  for  the  loss  of  such  profits,  when  fully  and  definitely 
ascertainable,  is  now  generally  allowed  in  actions  for  injuries  to  property.  Law- 
son  v.  Price,  45  Md.  123  (1870).     See  Sedgwick  on  Damages,  0th  ed.  p.  89,  n.  4. 


Personal  Injury  ;  Negligence  ;  Extent  of  Compensation  ;  Special 
Damages  ;   Concurrent  Negligence. 


SUPREME   JUDICAL    COURT,    NEW    HAMPSHIRE. 
[1809.]     HOLYOKE  V.  GRAND  TRUNK  R.  Co.  (48  K  H.  541). 

In  this  class  of  case?,  the  plaintiff  is  entitled  to  receive,  as  damages,  one  compi  nsation  for 
all  injuries,  past  and  prospective,  in  consequence  of  the  defendants'  wrongful  or  neg- 
ligent acts. 

They  are  understood  to  embrace  indemnity  for  actual  nursing  and  medical  expenses,  and 
loss  of  time,  or  loss  from  inability  to  perform  ordinary  labor,  or  capacity  to  earn 
money. 

Plaintiff  is  to  have  a  reasonable  satisfaction  for  loss  of  both  bodily  and  mental  powers,  or 
for  actual  suffering  both  of  the  bod}7  and  mind,  which  are  the  immediate  and  neces- 
sary consequences  of  the  injury. 

*  The  chief  justice  did  not  take  any  part  in  this  decision. 


704  TORTS. 

Plaintiff  will  not  be  entitled  to  special  damage  on  account  of  his  particular  calling  or 
profession. 

The  court  will  not  set  aside  a  verdict,  when  the  judge,  who  tried  the  case,  in  his  discre- 
tion, admitted  testimony  showing  the  general  bad  state  of  the  defendants'  track  for 
miles  distant  from  the  place  of  accident,  as  one  of  the  causes  probably  contributing 
to  the  accident,  which  occasioned  the  injury  to  plaintiff. 

Case  for  injuries  received  by  plaintiff,  August  24,  1864,  while 
traveling  as  a  passenger  on  defendants'  road.  Writ  dated  September 
27th,  1865.  Plaintiff  was  described  as  a  "  trader,"  and  it  was  alleged, 
as  one  ground  of  damage,  that  he  had,  since  the  injury,  been  unable 
to  attend  to  his  business.  The  declaration  contained  two  counts,  one 
alleging  negligence  in  the  management  of  the  train,  and  the  other  al- 
leging that  the  track  was  in  a  defective  condition  through  the  negli- 
gence of  the  defendants.  Either  party  may  refer  to  the  declaration 
as  a  part  of  the  case. 

The  court  ruled  that  under  this  declaration  plaintiff  could  not  be 
allowed  to  show  the  profits  of  his  business  prior  to  the  accident,  but 
that  plaintiff  might  introduce  evidence  to  show  the  kind  and  amount 
of  mental  and  physicial  labor  which  he  was  accustomed  to  do  before 
receiving  the  injury,  as  compared  with  that  which  he  had  been  able 
to  do  since,  for  the  purpose  of  aiding  the  jury  to  determine  what 
compensation  he  should  receive  for  his  loss  of  mental  and  physical 
capacity.  Under  this  ruling,  plaintiff  testified  that  his  occupation 
was  that  of  a  timber  merchant,  and  testified  as  to  the  nature  of  the 
business  of  his  firm,  and  the  part  he  took  in  it  before  and  since  the 
accident,  and  that  he  had,  according  to  the  best  estimate  he  could 
form,  lost  one-third  of  his  time,  in  comparison  with  the  years  prior 
to  the  injury.  This  evidence  was  admitted  subject  to  defendants'  ex- 
ception. 

The  court  instructed  the  jury,  in  reference  to  this  evidence,  in 
substance  as  follows :  "  That  if  the  defendants  were  liable  in  the 
action,  the  plaintiff  was  entitled  to  recover,  as  part  of  his  damages, 
compensation  for  his  loss  of  physical  and  mental  capacity,  so  far  as 
proved  to  have  been  caused  solely  by  the  defendants'  negligence  ; 
that  there  was  no  rule  of  law  that  one  man  was  or  was  not  exactly 
like  another ;  that  it  was  a  question  of  fact  for  the  jury  what  injury 
the  plaintiff  had  suffered  by  the  defendants'  negligence,  not  what  any 
other  man  had  suffered  ;  that  the  evidence  of  his  occupation  and  ca- 
pacity was  admissible  only  in  order  to  enable  the  jury  to  judge  of  the 
injury  to  his  capacity ;  that  this  was  an  action  for  an  injury  to  the 
man,  and  not  for  interfering  with  his  business,  and  the  damages  must 
be  limited  to  the  personal  injury  to  him,  occasioned  by  the  defendants' 


HOLYOKE  v.  GRAND  TRUNK  RAILROAD  CO.         705 

negligence.  (These  instructions  are  taken  from  Ballon  v.  Farnum,  11 
Allen,  73,  page  74). 

Plaintiff  claimed  exemplary  damages,  and  to  sustain  this  claim, 
after  proving  the  condition  of  the  track  at  the  place  of  the  accident, 
he  offered  evidence  that  the  defendants'  track,  at  the  time  of  the  ac- 
cident, was  in  a  defective,  unsafe,  and  dangerous  condition  in  other 
places ;  offering  evidence  of  its  condition  on  the  five-mile  section, 
which  included  the  place  of  the  accident,  and  also  evidence  of  its  con- 
dition between  Island  Pond,  Vermont,  and  Portland,  Maine.  The 
court  ruled  that  the  evidence  was  not  admissible  for  the  purpose,  and 
plaintiff  excepted. 

It  appeared  in  evidence  that  the  train  on  which  the  plaintiff  was 
a  passenger  had  run  from  Island  Pond  to  the  place  of  the  accident, 
near  Stark  ;  that  it  was  running  at  a  very  rapid  rate,  at  or  near  mid- 
night, round  a  short,  sharp  curve,  when  the  car  in  which  the  plaintiff 
was  riding  was  precipitated  down  an  embankment  into  a  mill-pond. 
The  court  allowed  plaintiff"  to  prove  that  the  track  between  Island 
Pond  and  the  place  of  the  accident  (about  34  miles)  was  in  an  un- 
even condition,  by  means  of  the  ties  being  somewhat  decayed,  and  the 
rails  were  very  much  worn  in  many  places,  and  had  become  battered. 
This  evidence  was  admitted  for  the  sole  purpose  of  showing  that  the 
condition  of  the  track  was  such  as  would  have  a  tendency  to  injure 
the  wheels  of  the  train  which  met  with  the  accident ;  and  the  jury 
were  instructed  that  the  condition  of  the  track  in  other  places  was  not 
evidence  to  be  considered  on  the  question  of  exemplary  damages,  but 
that  they  should  consider  only  the  circumstances  attendant  on  this  ac- 
cident, and  which  tended  directly  to  contribute  to  it.  To  the  admis- 
sion of  this  evidence  defendants  excepted. 

Plaintiff  offered,  as  bearing  on  the  question  whether  the  accident 
was  one  for  which  defendants  were  liable,  to  show  that  repairs  were 
made  on  defendants'  track  at  the  place  of  the  accident,  under  the  au- 
thority and  direction  of  defendants'  road-master,  within  three  or  four 
days  after  the  accident.  The  court  rejected  the  evidence,  and  plaintiff 
excepted. 

The  jury  returned  a  verdict  for  plaintiff,  with  damages  assessed  at 
three  thousand  dollars.  Both  sides  moved  to  set  aside  the  verdict,  on 
account  of  the  above  rulings,  excepted  to  by  them  respectively. 

No  exception  was  taken  to  the  instructions  of  the  court  regarding 
actual  and  exemplary  damages ;  but  defendants  moved  to  set  aside 
the  verdict  on  the  ground  that  the  damages  were  excessive. 

Plaintiff's  evidence  bearing  on  actual  damages  was,  in  brief,  that 
he  received  injuries  on  his  leg  and  eye-brow,  which  soon  healed ;  that 
45 


706  TORTS. 

his  shoulder  was  injured  so  severely  that  for  several  days  he  suffered 
a  very  acute  pain,  not  relieved  by  large  doses  of  opium,  and  was  much 
broken  of  his  rest ;  that  he  was  for  one  week  or  more  confined  to  his 
house ;  that  it  was  two  months  before  he  did  any  business ;  that  he 
had  been  unable  to  attend  to  business  since  the  accident  as  he  did  be- 
fore, having  lost  a  third  of  his  time ;  that  at  first  he  could  not  move 
his  arm  at  all,  and  that  he  had  never  recovered  the  upward  motion  of 
his  shoulder;  and  the  plaintiff's  attendant  physician  testified  that  he 
did  not  think  plaintiff's  arm  (or  shoulder)  would  ever  recover  entirely, 
and  that,  in  his  opinion,  there  was  now  a  decided  difference  between 
the  plaintiff's  right  and  left  shoulder — the  injured  shoulder  "being  a 
little  less  round  than  the  other;  also,  that  he  had  been  plaintiff's  fam- 
ily physician  from  ten  to  fourteen  years ;  that  he  thought  plaintiff's 
nervous  system  was  not  in  so  good  condition  since  the  accident  as 
before ;  and  that  such  an  injury  as  plaintiff  received  is  liable  to  affect 
the  general  health — the  nervous  system  receiving  a  shock  from  which 
it  frequently  fails  to  recover  perfect  tone  and  power. 

It  also  appeared  that  plaintiff  had  probably  expended  more  than 
forty  dollars  for  medicines  and  medical  attendance  and  advice;  and 
that  plaintiff  had  gone  away  from  home  two  or  three  autumns  since 
the  accident,  and  been  absent  from  one  to  two  months,  to  get  rested, 
and  get  rid  of  his  troubles,  instead  of  remaining  at  home  and  attend- 
ing to  business. 

It  appeared  that  one  set  of  wheels  on  the  car  which  ran  off  were 
one  and  one-fourth  or  one  and  one-half  inches  too  narrow  guage  for 
the  road,  that  the  rails  where  the  car  ran  off  were  defective,  that  the 
train  was  running  at  an  unusually  rapid  speed  in  the  night,  and  that 
the  curve  where  the  accident  occurred  was  short  and  sharp,  and  that 
the  car  was  precipitated  down  an  embankment  into  a  mill-pond, 
where  the  car  was  turned  bottom  side  up,  and  the  lowest  part  of  the 
car  was  in  three  or  four  feet  of  water  and  about  twelve  feet  below 
the  track. 

The  court  instructed  the  jury  that  if  they  found  the  accident  was 
owing  to  the  gross,  great,  exceeding  negligence  of  defendants,  they 
might,  in  their  discretion,  give  exemplary  damages,  but  that  they  were 
not  bound  to  do  so. 

Defendants  called  no  witnesses. 

The  questions  of  law  arising  on  the  foregoing  case  were  reserved, 
and  assigned  to  the  Law  Term. 

NESMira,  J. — The  plaintiff  claimed  indemnity  for  injuries  received 
by  him  while  a  passenger  in  the  cars  of  the  defendants'  road,  as  located 
in  this  State.  The  averments  in  his  writ  appear  to  be  such  as  are 
generally  used  in  such  cases. 


HOLYOKE  y.  GRAND  TRUNK  RAILROAD  CO.         707 

Some  question  is  made  as  to  plaintiff's  right  to  recover  the  dam- 
ages claimed  by  him  under  his  general  declaration.  It  seems  to  be 
settled  that  he  is  entitled  to  recover  one  compensation  for  all  his  in- 
juries, past  and  prospective,  in  consequence  of  the  defendants"  "wrong- 
ful or  negligent  acts.  Damages  are  presumed  to  embrace  indemnity 
for  actual  nursing  and  medical  expenses,  also  loss  of  time,  or  loss 
from  inability  to  perform  ordinary  labor,  or  capacity  to  earn  money. 
Plaintiff  is  to  have  a  reasonable  satisfaction  for  loss  of  both  bodily 
and  mental  powers,  or  for  actual  suffering  both  of  the  body  and  mind, 
which  are  shown  to  be  the  immediate  and  necessary  consequences  of 
the  injury  wrongfully  received.  Also  exemplary  damages  may  some- 
times be  recovered  in  this  form  of  action,  embracing  cases  of  gross 
negligence.  (Hopkins  v.  Atlantic  &  St.  Lawrence  Railroad,  36  ISr.  EL 
14  ;  Shaw  v.  The  Boston  &  Worcester  Railroad,  8  Gray,  82  ;  Ransom 
v.  The  New  York  &  Erie  Railroad,  1  E.  D.  Smith,  or'  15  K  Y.  415 ; 
Theobald  v.  The  Railway  Passenger  Insurance  Company,  26  Eng. 
Law  &  Eq.  Reports,  432  ;  18  Adolphus  &  Ellis  Rep.  N.  S.  93  ;  Blake 
v.  The  Midland  Railway  Company,  10  Eng.  Law  &  Eq.  Rep.  437 ; 
Linsley  v.  Bushnell,  15  Conn.  Rep.  225  ;  Segar  v.  The  Town  of  Bark- 
hamsted,  22  Conn.  Rep.  290 ;  Canning  v.  Williamstown,  1  Cush.  451 ; 
Lincoln  v.  Saratoga  &  Schenectady  Railroad,  23  Wend.  425  ;  Cald- 
well v.  Murphy,  1  Duer,  233 ;  Perkins  v.  The  Concord  Railroad,  44 
K  H.) 

Plaintiff  will  not  be  entitled  to  special  damages  on  account  of  any 
particular  calling  or  profession.  The  injury  is  personal  to  the  man. 
The  description  in  plaintiff's  writ  designating  him  as  a  timber  mer- 
chant, was  merely  d 'esc riptio  persona,  inserted  there  for  identification 
and  nothing  more.  We  do  not  understand  that  plaintiff's  declaration 
in  his  writ  contained  any  averment  under  which  he  could  claim  dam- 
ages in  consequence  of  his  trade  ;  or  that  the  law  would  allow  his 
damages  to  be  enhanced  on  any  such  account.  Such  averment,  if 
made,  would  simply  be  immaterial  and  of  no  advantage  to  the  plaint- 
iff. Upon  this  part  of  the  case  we  do  not  think  the  defendants  have 
any  grounds  to  complain  of  the  ruling  of  the  court  (Ballon  y.  Far- 
num,  11  Allen,  73). 

We  state  the  theory  of  the  law  on  this  subject;  but  in  actual 
practice,  juries,  in  making  their  estimate  of  a  party's  loss  of  time  and 
sufferings,  are  apt  to  be  much  influenced  by  his  rank  in  society,  or 
relative  merits  and  position  in  life,  and  will  be  likely  to  inquire  into 
the  particular  business  or  pursuit  in  which  he  may  have  been  engaged 
when  the  injury  was  inflicted  upon  him. 

Again  plaintiff  allege!  negligence  on  the  part  of  the  defendants. 


708  TORTS. 

in  keeping  their  track  in  suitable  repair  and  in  the  management  of 
their  train  when  the  accident  happened  to  him.  One  piece  of  evi- 
dence relied  on  to  sustain  this  view  was,  that  the  train  was  running 
at  an  unusually  rapid  rate  of  speed,  at  or  near  midnight,  around  a 
sharp  curve.  Whether  this  rapidity  of  speed  constituted  negligence 
must  depend  in  part  on  what  kind  of  a  train  it  was,  or  whether  the 
car  wheels  and  other  furniture  were  in  good  repair  or  position,  or 
battered  or  worn,  or  whether  the  track  over  which  they  had  been 
running  was  rough  or  smooth.  These  are  some  of  the  proper 
elements  to  be  weighed  in  determining  the  character  of  the  accident. 
Previous  hard  usage  of  a  track  would  be  evidence  tending  to  show 
present  bad  condition.  If,  contrary  to  the  probable  presumption,  the 
car  wheels  were  not  injured  by  the  bad  condition  of  the  road,  it  was 
open  to  the  plaintiff  to  have  shown  that  fact  to  the  satisfaction  of  the 
jury.  The  actual  state  both  of  the  track  and  wheels  was  much  more 
within  their  knowledge  than  the  plaintiff's. 

The  probability  that  the  defendants'  car  wheels  were  unfit  when 
they  were  originally  put  on,  or  were  rendered  so  by  the  roughness  of 
the  track,  was  enhanced  by  the  fact  that  one  set  of  wheels  on  the 
car,  which  ran  off,  were  either  one  and  one  fourth  or  one  and  one- 
half  inches  too  narrow  a  guage  for  the  road-bed  or  track.  It  is 
manifest  that  such  wheels  were  originally  unfit  to  be  used  as  they 
were,  or  would  be  more  likely  to  be  battered  or  injured  by  de- 
fective rails,  than  would  wheels  of  a  proper  guage,  and  would  be 
likely  to  be  injured  by  running  for  many  miles  on  such  defective 
track. 

It  appears  to  us  that,  upon  principle,  this  evidence  was  legally 
competent  for  the  jury  to  weigh.  The  only  doubt  is  whether  it  was 
not  too  remote  ;  but  we  think  the  decision  of  the  question  of  remote- 
ness was  within  the  discretion  of  the  judge  who  tried  the  case,  and 
we  now  think  that  discretion  was  properly  exercised  in  this  instance; 
and,  therefore,  the  defendants'  exception  to  this  evidence  is  overruled, 
and  there  must  be 

Judgment  on  the  verdict. 

Note. — It  is  well  settled  that  in  these  actions  damages  are  not  limited  to  the 
time  when  the  suit  is  brought,  but  are  given  for  such  future  pain  and  continued 
or  permanent  disability  as  may  be  fairly  expected  to  result  from  the  injury.  See 
Curtis  v.  Rochester  and  Syracuse  R.  Co.  18  N.  Y.  534.  But  damages  for  future 
physical  suffering  must  be  limited  to  such  as  would  result,  with  reasonable  cer- 
tainty, from  the  injury  complained  of.  Fry  v.  The  Dubuque  and  Southwestern 
Railway  Co.  43  Iowa,  410. 

In  the  case  of  an  infant,  damages  may  be  given  for  the  loss  of  its  future  serv- 


PUCKETT   v.    SMITH.  709 

ices  during  its  minority.  Kerr  v.  Forgue,  54  III.  482.  Arid  it  is  said  that,  in 
estimating  prospective  damages  for  future  loss  of  time,  medical  expenses,  and 
personal  suffering,  the  jury  should  reduce  these  losses  to  such  a  sum  as,  being  put 
at  interest,  would  amount  to  the  sum  the  plaintiff  would  thereafter  lose  in  these 
respects  by  the  injury.     Fulsome  v.  Concord,  46  Vt.  135  (1873). 

In  an  action  by  husband  and  wife  against  a  town  for  personal  injuries  to  the 
wife,  occasioned  by  a  defective  highway,  if  the  jury  think  that  the  sum  paid  for 
necessary  labor  substituted  for  the  life's  ordinary  service,  with  interest,  is  a  just 
compensation  for  the  loss  of  the  wife's  service,  they  are  at  liberty  to  find  damages 
to  that  amount.  Whether  interest  eo  nomine  is  recoverable  in  an  action  of  tort  or 
not,  the  jury  may  consider  time  in  fixing  the  damages.  Lindsey  v.  Town  of  Dan- 
ville, 46  Vt.  144  (1873).  See  also,  as  to  the  last  rule,  Nones  v.  Northouse,  46  Vt. 
587  (1873). 


Continuing  Injury;  Damages  after  Suit  Brought. 


COURT   OF    APPEALS,    SOUTH    CAROLINA. 

[1850]    Puckett  v.  Smith  (5  Strobh.    S.  0.  Law,  20). 

One  tenant  in  common  of  a  ferry  may  maintain  an  action  on  the  case  against  his  co- 
tenant,  to  recover  his  share  of  the  income  of  the  ferry,  and  damages  may  be  assessed 
to  the  time  of  trial. 

Wherever  the  injury  is  continuous,  and  continued  after  action  brought,  the  plaintiff  may 
recover  the  damages  incurred  after  the  commencement  of  the  suit. 

This  was  an  action  on  the  case,  for  disturbance  of  the  right  of 
ferry. 

The  plaintiff  was  the  owner  of  Swansey's  Ferry  ;  two-thirds  in 
his  own  right,  under  the  charter  granted  in  1846,  and  one-third  by 
virtue  of  a  purchase  from  J.  "W.  H.  Johnson,  to  whom,  with  himself, 
the  charter  had  been  granted  for  ten  years. 

He  (the  plaintiff)  became  much  involved  in  debt,  and  executions 
pressing  him,  he  selected  such  portions  of  his  real  estate  as  he  could 
best  spare.  By  his  directions,  the  sheriff  of  Abbeville  levied  on  and 
sold  two-thirds  of  the  ferry  called  Swansey's,  over  Saluda,  and  15£ 
acres  of  land  appurtenant  thereto. 

The  plaintiff  was  present  and  assenting  to  the  sale.  It  was 
bought  on  the  5th  of  February,  1849,  by  William  S.  Smith,  for 
$1,315.  The  sheriff's  deed  was  executed  1st  March,  1819.  On 
the  6th  of  February,  the  defendant  took  entire  possession  of  the 
ferry. 


710  TORTS. 

The  plaintiff,  soon  after  the  sale  (in  a  week),  demanded  posses- 
sion of  the  ferry ;  the  defendant  refused  to  give  it  up.  The  gross 
income  of  the  ferry  was  proved  to  be  $S00  per  annum.  The  de- 
fendant was  in  possession  at  the  trial.  The  plaintiffs  writ  was  issued 
the  28th  of  February,  L849. 

The  circuit  judge  thought  the  sheriff  could  not  legally  seize  and 
sell  the  ferry  ;  that  therefore  the  plaintiff  was  entitled  to  recover. 
He  thought,  however,  and  so  told  the  jury,  that  he  could  only  re- 
cover damages  to  the  issuing  of  his  writ,  twenty-one  days. 

The  jury  found  a  sum  greatly  beyond  such  damage. 

The  defendant  appealed  and  moved  the  Court  of  Appeals  for  a 
new  trial : 

1.  Because  no  damages  were  proved  for  plaintiff. 

2.  Because  the  jury  found  damages  to  an  excessive  amount,  and 
contrary  to  the  proof. 

3.  Because  the  verdict  was  contrary  to  law  and  evidence. 
Cueia,  per  Fkost,  J. — The  jury  found  for  the  plaintiff  one-third 

of  the  gross  income  of  the  ferry,  from  the  time  the  cause  of  action 
accrued,  to  the  trial.  This  is  the  full  extent  of  the  plaintiff's  just 
claim.  The  only  question  which  it  is  necessary  to  decide  is,  whether, 
in  this  action,  the  plaintiff  can  recover  more  than  his  share  of  the 
income  of  the  ferry,  which  the  defendant  received  before  the  com- 
mencement of  the  suit.  In  Pepoon  v.  Clarke  (1  Mill's  C.  R.  371), 
which  was  an  action  of  ravishment  of  ward,  to  establish  the  freedom 
of  a  slave,  by  the  verdict,  hire  was  allowed  to  the  time  of  trial. 
J ohnson,  J.,  delivering  the  opinion  of  the  court,  says,  "whenever 
the  injury  is  in  its  nature  continuous,  there  can  be  no  question  that 
the  party  injured  is  entitled  to  recover  for  all  damages  previous  to 
the  trial.  If  it  were  otherwise  for  injuries  of  this  character,  the  ac- 
tion must  be  brought  for  every  hour  of  its  continuance ;  or  the  rem- 
edy would  not  be  adequate,  and  thus  create  that  multiplicity  of 
actions  which  the  law  so  much  abhors."  This  rule  governs  other 
forms  of  action.  In  trespass  to  try  title,  in  trover,  in  assumpsit  on 
interest-bearing  demands,  damages  are  recovered  to  the  time  of  trial. 
A  different  rule  might  be  adopted,  but  it  would  be  arbitrary.  The 
only  difference  would  be  that  if  damages,  after  the  commencement 
of  the  action,  cannot  be  recovered,  a  second  suit  would  be  necessary  ; 
but  if  they  are  allowed  to  the  time  of  trial,  a  complete  remedy  is 
afforded  by  the  judgment  for  all  the  previous  injury  which  the 
plaintiff  had  sustained.  The  case  of  Duncan  ads.  Markley  (Harper, 
276)  is  not  in  conflict  with  Pepoon  v.  Clarke.  There  the  defendant 
put  a  dam  across  a  navigable  creek  ;    which  was  a  public  nuisance. 


PEOPLE   v.    MILLER.  Til 

In  consequence  the  plaintiff  sustained  some  special  injuries  to  his 
mill,  for  which  the  action  was  brought.  Evidence  was  admitted  of 
such  injuries  after  the  commencement  of  the  suit.  A  new  trial  was 
granted,  because  there  was  no  necessary  connection  between  the  in- 
juries sustained  before  and  after  the  action  was  brought.  For  the 
public  nuisance,  which  was  continued,  the  plaintiff  had  no  action, 
but  only  for  any  particular  injury  he  had  suffered. 

By  the  act  of  1827,  every  charter  of  a  bridge,  ferry  or  turnpike 
road  shall  be  in  fee  simple,  and  shall  be  held  by  the  grantees  as  real 
estate.  The  plaintiff  is  tenant  in  common,  with  the  defendant,  of 
the  ferry.  By  the  statute  4  Ann,  c.  16,  actions  of  account  may  be 
maintained  by  one  tenant  in  common  against  the  others,  as  bailiff, 
for  receiving  more  than  comes  to  his  share  and  proportion.  In  a 
writ  of  account,  the  first  judgment  is,  quod  computet  •  and  on  such 
account  all  articles  of  account,  though  incurred  since  the  writ,  shall 
be  included,  and  the  whole  brought  down  to  the  time  when  the  au- 
ditors make  an  end  of  the  account.  By  the  statute  of  Gloucester, 
damages  are  given  in  real  actions,  on  a  writ  of  entry  to  recover  the 
specific  lands.  The  statute  gives  damages  generally,  without  saying 
till  that  time  ;  yet  the  construction  on  it  has  been,  that  they  shall 
compute  all  the  damages  which  have  arisen  pendente  lite.  Where  a 
man  is  accountable  for  money  or  goods,  case  lies  against  him,  on  ac- 
count, at  his  election. 

The  motion  is  dismissed. 

Evans,  Wakdlaw,  and  Withers,  JJ.,  concurred. 

Motion  refused. 


INTRUSION  INTO  PUBLIC  OFFICE. 

SUPREME   COURT,    MICHIGAN. 

[1872.]    People  ex  rel.  Benoit  v.  Miller  (24  Mich.  458). 

One  kept  out  of  a  profitable  public  office  by  an  unlawful  intruder,  is  entitled  to  recover 
as  damages  the  whole  official  salary  without  deduction  either  for  the  services  of  the 
incumbent,  or  for  the  plaintiff's  profitable  use  of  the  time  during  which  he  was  kept 
out. 

Information  in  the  nature  of  quo  warranto. 
Campbell,  J. — In  this  case,  which  is  a  proceeding  in  quo  war- 
ranto,  originating  in  this  court,  the  defendant  was  convicted  of  an 


712  INTRUSION   INTO   PUBLIC   OFFICE. 

unlawful  intrusion  into  the  office  of  treasurer  of  Wayne  county,  the 
proceeding  having  been  commence  at  once  after  the  beginning  of  the 
official  term  in  1867,  and  the  ouster  laid  as  of  the  earliest  period  of 
that  term. 

Judgment  having  been  rendered  in  favor  of  the  relator,  he  filed 
his  suggestion  of  damages,  under  section  5297  of  the  compiled  laws, 
and  they  have  been  assessed  at  three  thousand  three  hundred  and 
forty-seven  dollars  and  thirty-three  cents,  being  confined  to  the  offi- 
cial salary,  without  fees  or  other  perquisites. 

Motion  being  made  for  judgment,  it  is  opposed,  on  the  ground 
that  the  judge  before  whom  the  issue  was  set  down  to  be  tried,  re- 
fused to  allow  in  reduction  of  damages,  evidence  of  the  value  of 
Miller's  services,  or  of  Benoit's  earnings  in  other  pursuits  while  kept 
out  of  the  office,  or  that  Benoit  did,  and  offered  to  do,  nothing  to- 
wards the  discharge  of  the  official  duties. 

The  learned  judge,  after  holding  that  Benoit  was  wrongfully  ex- 
cluded by  Miller  from  the  office  from  the  beginning  of  the  official 
term  in  1867,  proceeded  as  follows  : 

The  only  question,  therefore,  is  whether  any  deduction  should 
have  been  made  from  the  official  salary,  for  Miller's  services  or 
Benoit's  outside  profits  and  earnings. 

The  case  finds  expressly  that  the  whole  office  and  contingent  ex- 
penses, and  the  services  of  the  deputy  and  clerks,  were  paid  by 
Wayne  county.  ]STo  expenditures  of  Miller  are  in  controversy,  for 
he  had  none  to  make.  There  are  no  ascertainable  pecuniary  deduc- 
tions in  question. 

We  do  not  find  any  reason  or  authority  for  holding  that  the  good 
faith  of  the  intruder  can  make  any  difference  touching  the  pecuniary 
value  of  the  office  to  the  person  kept  out.  His  damages  are  to  be 
measured  by  what  he  has  lost,  and  his  loss  cannot  be  lessened  by  any 
such  consideration.  In  the  present  case,  however,  it  is  admitted 
Miller  knew  all  the  facts  which  gave  the  legal  right  to  the  relator, 
and  whether  he  knew  the  law  or  not,  he  must  be  held  responsible 
for  such  knowledge ;  and  so  he  has  neither  equity  nor  legal  claim  to 
favor  on  any  such  ground. 

The  case,  therefore,  is  very  free  from  disturbing  elements,  and 
the  principles  which  ought  to  settle  it  are  not  complicated.  There 
are  not  many  decisions  fixing  special  rules  for  the  measure  of  dam- 
ages, but  there  are  familiar  principles  which  will  enable  us  to  come 
to  a  safe  conclusion. 

The  old  remedy  for  disseizin  of  offices  of  profit  seems  to  have 
been  by  assize,  and  the  suit  was  allowed  by  analogy  to  proceedings 


PEOPLE   v.   MILLER.  713 

for  the  recovery  of  possessions  in  lands  and  their  appurtenances 
Com.  Dig.  "  Assize"  [B.  1],  [B.  2];  Bac.  Ab.  "Assize,"  "Office"). 
So  far  as  this  analogy  holds,  it  would  not  permit  any  deduction  from 
the  recover  of  damages  based  on  personal  services  of  the  disseizor,  or 
on  the  outside  profits  of  the  disseizee. 

It  is  no  answer  to  an  action  for  mesne  profits  that  the  plaintiff 
has  made  more  money  in  other  business  than  he  would  have  done 
by  farming.  And  it  would  be  a  -strange  doctrine  to  hold  that  a  tres- 
passer could  claim  compensation  for  his  personal  services  in  clearing 
or  improving  land  against  the  owner's  claim  of  entry.  But  none  of 
these  analogies  are  perfect,  and  it  might  not  be  quite  safe  to  follow 
them  implicitly,  although  the  law  concerning  trespassers  and  dis- 
seizors of  all  kinds  is  not  subject  to  very  many  variations. 

In  such  offices  as  the  one  now  in  question,  there  are  very  few,  if 
any  duties,  which  cannot  be  performed  by  deputy.  There  are  duties 
for  which  no  specific  payment  is  made,  and  which  are  compensated 
by  the  salary,  and  there  are  duties  which  are  paid  for  by  fees  or 
other  perquisites,  only  earned  by  performing  those  specific  duties. 
There  may  be  reason  for  deducting  from  any  official  earnings  the 
actual  cost  of  obtaining  them,  which  would  have  been  entailed  on 
any  person  who  might  have  held  the  office. 

It  is  difficult  to  see  how  any  such  question  could  arise  here,  be- 
cause all  that  expense  is  paid  by  the  county.  How  far  there  might 
be  a  recovery  for  separate  perquisites  for  actual  services  rendered  to 
individuals  or  to  the  public,  but  which  might  or  might  not  have  be- 
come necessary  and  might  not  have  been  called  for,  we  are  saved 
from  considering  by  the  withdrawal  of  the  claim  for  those  items. 
The  claim  left  is  very  simple. 

The  official  salary  is  not  made  dependent  on  the  amount  of  work 
actually  done  by  the  treasurer,  and  does  not  require  his  personal 
services  to  any  considerable  extent.  He  would  not  forfeit  it  by 
leaving  the  bulk,  or  possibly  the  whole,  of  his  substantial  duties  to 
the  deputy  and  clerks.  He  would  not  necessarily  lose  it  even  by 
misconduct  unless  removed  from  office.  It  is  given,  no  doubt,  on 
the  theory  that  a  treasurer  is  worth  so  much  to  the  county ;  but  not 
upon  any  specific  apportionment  whereby  the  value  of  his  time  and 
his  sagacity,  and  his  character,  and  his  business  knowledge  can  be 
determined  separately.  But  whatever  may  be  the  basis  of  the  allow- 
ance, it  is  fixed  upon  the  theory  that  it  will  usually  be  paid  to  a  per- 
son who  has  been  selected  by  the  electors  or  appointing  power  as  a 
desirable  incumbent.  The  amount  of  personal  labor  done  by  the 
officer  can  form  but  a  small  part  of  his  claim   to  the  salary  in  such. 


714  INTRUSION   INTO    PUBLIC   OFFICE. 

an   offise    as  this,  and  he  may  be   much  less  competent  than  his 
deputies. 

But  whether  it  be  or  be  not  important  that  this  personal  labor 
should  be  expended — and  in  some  offices  it  must  be — the  inquiry 
here  is,  how  far  it  can  be  regarded  as  proper  to  make  the  person 
who  has  been  kept  out  of  the  office  pay  for  the  services  of  the 
wrong-doer.  They  are  not  services  done  for  him  personally.  They 
are  not  services  done  at  his  request,  or  by  his  consent.  They  are 
services  which  it  must  be  assumed  he  would  have  been  willing  to 
perform  himself,  if  not  prevented  by  the  intruder. 

No  rule  of  law  permits  one  to  make  another  his  debtor  in  spite 
of  his  protest  and  against  his  will.  There  are  some  cases  where  the 
law  raises  an  implied  assumpsit  though  there  has  been  no  express 
agreement,  but  none  where  it  could  be  raised  in  favor  of  a  naked 
trespasser.  The  money  which  Miller  received  from  the  county  was 
paid  to  him  because  he  was  an  officer  de  facto,  and  as  the  perquisites 
of  office,  and  not  for  private  services  independent  of  official  charac- 
ter. Having  received  it  as  official  property  he  must  restore  it  as 
such.  An  intermeddler  might  as  well  charge  a  commission  on  rents 
collected  of  tenants  without  authority  from  the  landlord,  as  an  in- 
truder into  office  claim  pay  for  his  personal  services  from  the  legal 
officer  whom  he  has  kept  out.  Miller's  services  were  not  rendered 
with  any  design  of  benefiting  Benoit.  He  cannot  now  assume  the 
position  that  he  was  an  agent,  or  servant,  or  a  benefactor.  Where 
there  are  no  relations  there  can  be  no  duties,  and  no  claim  for 
services. 

There  is,  we  think,  no  foundation  for  any  claim  to  a  deduction 
on  account  of  Benoit's  profitable  use  of  the  time  during  which  he 
was  kept  out.  In  private  dealings,  whether  of  individuals  or  private 
corporations,  a  person  wrongfully  excluded  from  service  or  office, 
may  be  fairly  expected  to  do  what  he  can  to  gain  employment,  and 
if  he  gets  it,  he  should  not  be  allowed  double  pay  for  time  which  be- 
longs to  his  employer ;  but  should  receive  no  more  for  his  damages 
than  he  has  suffered.  But  this  is  on  the  ground  that  all  private  re- 
lations of  that  kind,  by  Avhatever  name  they  may  be  called,  really 
rest  more  or  less  on  contract ;  and  actions  for  such  injuries  are 
very  much  governed  by  the  rules  applicable  to  contract.  No  de- 
duction can  be  claimed  for  time  which  does  not  belong  to  the  em- 
ployer (Geiger  v.  Harris,  19  Mich.  It.  209). 

Public  offices  have  always  been  regarded  as  resting  on  very  dif- 
ferent grounds.  A  person  who  usurps  public  office  commits  a  pun- 
ishable misdemeanor,  where  the  public  and  not  the  person  excluded 


PEOPLE   t.   MILLER.  715 

is  the  party  directly  injured.  The  perquisites  are  annexed  to  the 
office  as  such  on  grounds  of  public  policy,  and  do  not  change  their 
legal  character  by  the  amount  of  labor  involved  in  the  official  duties. 
There  are  sinecure  or  honorary  offices,  there  are  offices  which  may 
be  fulfilled  entirely  or  chiefly  by  deputy,  and  there  are  offices  where 
everything  must  be  done  in  person.  The  assize  lay  in  the  one  case 
as  well  as  in  the  other,  and  lay  for  the  deprivation  of  office  and  of 
official  perquisites.  It  sounded  in  tort  and  not  in  assumpsit,  and 
recognized  no  relation  between  the  party  wronged  and  the  wrong- 
doer. The  right  to  a  deduction  can  only  spring  from  a  duty  de- 
pendent on  a  legal  relation.  The  mere  wrong-doer  must  be  regarded 
as  acting  throughout  in  defiance  of  his  adversary,  and  as  a  stranger 
to  him  in  all  respects. 

It  was  well  suo-o-ested  bv  the  relator's  counsel  that  salaries  are 
not  universally  fixed  at  a  rate  beyond  what  might  be  earned  in  other 
pursuits,  by  men  selected  to  fill  the  offices.  There  are  very  few  cases 
where  it  would  be  a  serious  pecuniary  damage  to  be  kept  out,  and 
many  where  it  would  probably  be  profitable  to  be  excluded.  But 
the  common  law,  and  every  system  of  law,  recognizes  the  fact  that 
it  is  a  positive  wrong  to  exclude  a  rightful  claimant  from  office, 
whether  of  pecuniary  value  or  not.  The  only  difference  is  that 
under  a  pecuniary  standard  the  damages  are  not  so  purely  discretion- 
ary as  where  the  office  is  honorary.  But  it  would  lead  to  very 
absurd  results  if  the  quantum  of  damages  could  be  reduced  by  out- 
side earnings. 

Judgment  must  be  rendered  on  the  verdict  for  the  damages 
assessed,  with  costs. 

Cooley  and  Graves,  JJ.,  concurred. 

Christiajtcy,  Ch.  J.,  did  not  sit  in  this  case. 


716  VIOLATION   OF   TRADE-MARK. 

VIOLATION  OF  TRADE-MARK. 

Trade- Makk  ;  Measure  of  Damages. 


SUPREME   COURT,    CALIFORNIA. 

[1871.]  Graham  v.  Plate  (40  Cal.  593). 

The  whole  profit  obtained  by  the  defendant  may  be  recovered,  although  tliis  is  not  the 
only  measure  of  the  plaintiffs  damages. 

Appeal  from  the  District  Court  of  tlie  Twelfth  District,  City  and 
County  of  San  Francisco. 

This  is  an  action  by  the  plaintiff  for  damages  for  an  alleged  viola- 
tion of  the  trade-mark  of  his  intestate,  by  the  defendant. 

Judgment  was  rendered  for  plaintiff,  and  defendant  appealed. 
The  other  facts  are  stated  in  the  opinion. 

Crockett,  J.,  delivered  the  opinion  of  the  court,  Ehodes,  C.  J., 
Wallace,  J.,  and  Temple,  J.,  concurring. 

The  two  grounds  chiefly  relied  upon  by  the  defendant  for  a  re- 
versal of  the  judgment  are  :  First.  That  the  evidence  shows  that  the 
trade-mark  of  Henry  Deringer  was  used  under  a  license  from  him  by 
the  defendant;  and,  Second.  That  there  was  no  proof  that  Deringer 
suffered  any  damage  by  the  use  of  the  trade-mark,  and  the  damages 
awarded  by  the  court  are  excessive.  But  neither  point  is  tenable. 
The  evidence  in  respect  to  the  license,  when  viewed  in  the  light  most 
favorable  for  the  defendant,  was,  at  least,  conflicting.  Deringer  tes- 
tifies explicitly  that  he  never  granted  any  such  license ;  and  it  is 
highly  improbable  that  he  ever  did,  considering  all  the  circumstances 
disclosed  by  the  evidence.  I  think  the  finding  on  this  point  is  fully 
supported  by  the  weight  of  evidence. 

On  the  second  point  there  is  as  little  room  for  doubt.  It  clearly 
appears  in  proof,  that  the  defendant  has  made  a  profit  of  $1,770  by 
the  sale  of  pistols  made  in  imitation  of  the  Deringer  pistol,  and  bear- 
ing Deringer's  trademark  stamped  thereon  without  his  consent ;  and 
the  court  rendered  a  judgment  for  this  amount  against  the  defendant. 
It  is  insisted,  on  behalf  of  the  defendant,  that  the  profit  realized  by 
him  from  sales  of  the  spurious  article  under  the  simulated  trade- 
mark, is  not  a  proper  measure  of  damages.  It  is  conceded  that  this 
is  the  proper  rule  in  an  action  for  damages  for  the  infringement  of  a 


GRAHAM   v.   PLATE.  717 

patent.     It  is  said  that  the  patentee,  having  the  exclusive  right  to 
manufacture  and  vend  the  patented  article,  is  entitled,  legally  and 
equitably,  to  all  the  profits  made  by  any  one  from  the  manufacture 
and  sale  of  it  in  violation  of  the  rights  of  the  patentee ;  but  that  one, 
who  has  acquired  an  exclusive  right  to  use  a  particular  trade-mark, 
has  not  thereby  acquired  an  exclusive  right  to  make  and  vend  the 
commodity  to  which  the  trade-mark  is  affixed ;  that  any  one  has  the 
right  to  make  and  vend  the  same  commodity,  in  exact  imitation  of 
that  made  by  the  owner  of  the  trade-mark,  and  that  the  offense  con- 
sists, not   in  imitating   the   commodity,  but   the   trade-mark   only. 
Hence,  it  is  argued,  the  profit  made  by  a  sale  of  the  commodity 
ought  not  to  be  a  measure  of  the  damages  ;    but  the  party  is  entitled 
to  only  such  damages  as  resulted  from  a  piracy  of  the  trade-mark ; 
and  the  profit  realized  by  a  sale  of  the  commodity  does  not  establish 
the  amount  of  this  damage,  which  may  be  greater  or  less  than  the 
amount  of  the  profit.     It  is  evident  that  the  profit  realized  by  the 
wrong-doer   is  not   the  only  measure  of    damages.      The   spurious 
article  may  have  injured  the  credit  of    the  genuine  one,  and  the 
profits  of  the  owner  of  the  trade-mark  may  have  been  greatly  re- 
duced, whilst   the   MTong-doer  has   made   little   or   no  profit.     But 
whilst  the  profit  made  by  the  latter  does  not  limit  the  recovery,  the 
owner  of  the  trade-mark  is  entitled  to  all  the  profit  which  was  in  fact 
realized.    In  sales  made  under  a  simulated  trade-mark  it  is  impossible 
to  decide  how  much  of  the  profit  resulted  from  the  intrinsic  value  of 
the  commoditv  in  the  market,  and  how  much  from  the  credit  given 
to  it  by  the  trade-mark.     In  the  very  nature  of  the  case  it  would 
be  impossible  to  ascertain  to  what  extent  he  could  have  effected  sales, 
and  at  what  prices  except  for  the  use  of  the  trade-mark.     No  one 
will  deny  that  on  every  principle  of  reason  and  justice  the  owner  of 
the  trade-mark  is  entitled  to  so  much  of  the  profit  as  resulted  from 
the  use  of  the  trade-mark.     The  difficulty  lies  in  ascertaining  what 
proportion  of  the  profit  is  due  to  the  trade-mark,  and  what  to  the 
intrinsic  value  of  the  commodity  ;  and    as  this  cannot  be  ascertained 
with  any  reasonable  certainty,  it  is  more  consonant  with  reason  and 
justice  that  the  owner  of  the  trade-mark  should  have  the  whole  profit 
than  that  he  should  be  deprived  of  any  part  of  it  by  the  fraudulent 
act  of  the  defendant.     It  is  the  same  principle  which  is  applicable  to 
a  confusion  of  goods.     If  one  wrongfully  mixes  his  own  goods  with 
those  of  another,  so  that  they  cannot  be  distinguished  and  separated, 
he  shall  lose  the  whole,  for  the  reason  that  the  fault  is  his  ;  and  it  is 
but  just  that  he  should  suffer  the  loss  rather  than  an  innocent  party, 
who  in  no  degree  contributed  to  the  wrong.     I  think,  therefore, 


718  VIOLATION   OF  TRADEMARK. 

there  was  no  error  in  awarding  to  the  plaintiff  the  whole  profit  made 
by  the  defendant.  This  view  of  the  law  appears  to  be  supported  by 
the  following  authorities  (Coats  v.  Holbrook,  2  Sandf.  Ch.  R.  611 ; 
Upton  on  Trade-Marks,  245  ;  Spottswood  v.  Clark,  2  Sandf.  Ch.  K. 
G29). 

But  if  there  were  no  authorities  on  the  point,  every  consideration 
of  reason,  justice  and  sound  policy,  demands  that  one  who  fraudu- 
lently uses  the  trade-mark  of  another  should  not  be  allowed  to  shield 
himself  from  liability  for  the  profit  he  has  made  by  the  use  of  the 
trade-mark,  on  the  plea  that  it  is  impossible  to  determine  how  much 
of  the  profit  is  due  to  the  trade-mark,  and  how  much  to  the  intrinsic 
value  of  the  commodity.  The  fact  that  it  is  impossible  to  apportion 
the  profit,  renders  it  just  that  he  should  lose  the  whole. 

Judgment  affirmed. 

Note. — A  different  view  was  taken  by  Wood,  V.  C,  in  a  case  arising  under 
Sir  Hugh  Cairn's  act  (21  and  22  Vict,  c.  27),  Leather  Cloth  Co.  *.  Hirschfield, 
Law  II.  1  Eq.  Cases,  299. 


Infringement  of  Patent  ;   Profits  ;   Royalty. 


SUPREME    COURT,  UNITED    STATES. 

[1875.]    Burdell  et  al.  v.  Denig  et  cd.  (92  U.  S.  R.  S.  C. 

2  Otto,  71G). 

In  cases  where  profits  are  the  proper  measure  of  damages  for  the  infringement  of  a  patent, 
such  profits  as  the  infringer  has  made,  or  ought  to  have  made,  govern,  and  not  those 
which  the  plaintiff  can  show  that  he  might  have  made. 

The  above  rule  applies  peculiarly  and  mainly  to  cases  in  equity,  and  is  based  upon  the 
idea  that  as  to  such  profits  the  infringer  of  the  patent  should  be  treated  as  a  trustee 
for  the  owner  thereof.  On  the  other  hand,  in  actions  at  law,  it  has  been  repeatedly 
held  that  the  rate  at  which  sales  of  licenses  of  machines  were  made,  or  the  estab- 
lished royalty,  constitutes  the  primary  and  true  criterion  of  damages. 

In  the  absence  of  satisfactory  evidence  of  that  class  which  is  more  appropriate  in  the 
forum  where  the  case  is  pending,  the  other  class  may  be  resorted  to,  as  furnish- 
ing one  of  the  elements  on  which  the  damages,  or  the  compensation,  may  be  ascer- 
tained. 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  Ohio. 

The  facts  are  stated  in  the  opinion  of  the  court. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 


BURDEI.L   v.   DENIG.  719 

The  plaintiffs  in  error  were  plaintiffs  in  the  Circuit  Court  in  an 
action  for  an  infringement  of  the  patent  of  A.  B.  Wilson,  for  a  feed- 
ing device  in  sewing-machines.  They  recovered  a  judgment  for  one 
hundred  and  twenty-five  dollars,  but  insist  that  they  were  entitled  to 
a  much  larger  judgment,  of  which  they  were  deprived  by  the  rulings 
of  the  court  in  the  progress  of  the  trial. 

The  objections  to  these  rulings  will  be  considered  by  us  under 
three  heads,  to  which  all  the  assignments  of  error  relate. 

1.  As  to  the  measure  of  damages. 

Evidence  was  given  tending  to  prove  that  plaintiffs  had  adver- 
tised to  sell  their  machines,  and  had  actually  sold  a  shop-right  to  use 
one  of  them  for  twelve  dollars  and  fifty  cents,  and  had  given  a  verbal 
license  to  another  person  to  use  an  old  machine  in  his  house  for  five 
dollars,  but  afterwards  refused  to  sell  or  license  for  Franklin  county, 
and  told  defendants  they  desired  to  retain  the  use  of  the  machine  as 
a  close  monopoly.  Evidence  had  also  been  given  as  to  profits  made 
by  defendants.  On  this  testimony  they  asked  the  court  to  instruct 
the  jury  that  "  this  testimony  was  not  sufficient  to  change  the  rule 
of  damages  from  the  profits  which  plaintiffs  would  have  made  if  they 
had  not  been  embarrassed  by  the  interference  of  the  defendants,  to 
a  mere  license-price,  because  they  do  not  establish  a  customary 
charge  for  the  right  to  use  the  invention  in  Franklin  county,"  which 
the  court  refused. 

There  are  two  sufficient  objections  to  this  prayer  : 

First,  In  cases  where  profits  are '  the  proper  measure,  it  is  the 
profits  which  the  infringer  makes,  or  ought  to  make,  which  govern, 
and  not  the  profits  which  plaintiff  can  show  that  he  might  have 
made. 

Second,  Profits  are  not  the  primary  or  true  criterion  of  damages 
for  infringement  in  an  action  at  law.  That  rule  applies  eminently 
and  mainly  to  cases  in  equity,  and  is  based  upon  the  idea  that  the 
infringer  shall  be  converted  into  a  trustee,  as  to  those  profits,  for  the 
owner  of  the  patent  which  he  infringes — a  principle  which  it  is  very 
difficult  to  apply  in  a  trial  before  a  jury,  but  quite  appropriate  on 
a  reference  to  a  master,  who  can  examine  defendant's  books  and 
papers,  and  examine  him  on  oath,  as  well  as  all  his  clerks  and 
employees. 

On  the  other  hand,  we  have  repeatedly  held  that  sales  of  licenses 
of  machines,  or  of  a  royalty  established,  constitute  the  primary  and 
true  criterion  of  damages  in  the  action  at  law. 

No  doubt,  in  the  absence  of  satisfactory  evidence  of  cither  class 
in  the  forum  to  which  it  is  most  appropriate,  the  other  may  be  re- 


720  SLANDER. 

sorted  to  as  one  of  the  elements  on  which  the  damages  or  the  com- 
pensation may  be  ascertained  ;  but  it  cannot  be  admitted,  as  the 
prayer  which  was  refused  implies,  that  in  an  action  at  law  the 
profits  which  the  other  party  might  have  made  is  the  primary  or 
controlling  measure  of  damages  (Packet  Company  v.  Sickles,  19 
Wall.  617). 

Neither  of  the  other  two  questions  considered  by  the  court,  for 
an  erroneous  ruling,  in  resj>ect  to  one  of  which,  by  the  court  below, 
the  judgment  of  that  court  was  reversed,  relate  to  the  general  prin- 
ciple controlling  measure  of  damages.  A  certain  instrument,  how- 
ever, which  was  imputed  a  receipt  for  the  use  of  four  of  the  plaint- 
iffs machines,  was  held  properly  admitted  in  evidence  to  reduce  the 
damages  to  the  extent  of  any  claim  for  such  use. 


SLANDER. 

Slander  ;  Special  Damages. 


COUKT    OF    KING  S    BENCH. 

[1806.]  Vicars  v.  Wiloocks  (8  East,  1). 

Where  special  damage  is  necessary  to  sustain  an  action  for  slander,  it  is  not  sufficient  to 
prove  a  mere  wrongful  act  of  a  third  person  induced  by  the  slander,  such  as  that  he 
dismissed  the  plaintiff  from  his  employ  before  the  end  of  the  term  for  which  they 
had  contracted ;  but  the  special  damage  must  be  a  legal  and  natural  consequence  of 
the  slander. 

In  an  action  on  the  case  for  slander  the  plaintiff  declared,  that 
whereas  he  was  retained  and  employed  by  one  J.  O.  as  a  journeyman 
for  wages,  the  defendant  knowing  the  premises,  and  maliciously  in- 
tending to  injure  him,  and  to  cause  it  to  be  believed  by  J.  O.  and 
others  that  the  plaintiff  had  been  guilty  of  unlawfully  cutting  the 
cordage  of  the  defendant,  and  to  prevent  the  plaintiff  from  continuing 
in  the  service  and  employ  of  J.  O.,  and  to  cause  him  to  be  dismissed 
therefrom,  and  to  impoverish  him ;  in  a  discourse  with  one  J.  M. 
concerning  the  plaintiff  and  concerning  certain  flocking  cord  of  the 
defendant  alleged  to  have  been  before  then  cut,  said  that  he  (the  de- 
fendant) had  last  night  some  flocking  cord  cut  into  six  yard  lengths, 
but  he  knew  who  did  it ;  for  it  was  William  Yicars,  meaning  that 
the  plaintiff  had  unlawfully  cut  the  said  cord.     And  so  it  stated 


VICARS  v.   WILCOCKS.  721 

other  like  discourse  with  other  third  persons,  imputing  to  the  plaintiff 
that  he  had  maliciously  cut  the  defendant's  cordage  in  his  rope-yard. 
By  reason  whereof  the  said  J.  O.,  believing  the  plaintiff  to  have  been 
guilty  of  unlawfully  cutting  the  said  flocking  cord,  &c,  discharged 
him  from  his  service  and  employment,  and  has  always  since  refused 
to  employ  him  ;  and  also  one  P.  P.,  to  whom  the  plaintiff  applied  to 
be  employed  after  his  discharge  from  J.  O.,  on  account  of  the  speak- 
ing and  publishing  the  said  slanderous  words,  and  on  no  other  account 
whatsoever,  refused  to  receive  the  plaintiff  into  his  service.  And  by 
reason  of  the  premises  the  plaintiff  has  been,  and  still  is,  out  of  em- 
ploy and  damnified,  &c. 

It  appeared  at  the  trial,  before  Lawrence,  J.,  at  Stafford,  that  the 
plaintiff  had  been  retained  by  J.  O.  as  a  journeyman  for  a  year  at 
certain  wages,  and  that,  before  the  expiration  of  the  year,  his  master 
had  discharged  him  in  consequence  of  the  words  spoken  by  the  defend- 
ant. That  the  plaintiff  afterwards  applied  to  P.  P.  for  employment, 
who  refused  to  employ  him  in  consequence  of  the  words,  and  because 
his  former  master  had  discharged  him  for  the  offense  imputed  to 
him.  The  plaintiff  was  thereupon  non-suited,  it  being  admitted  that 
the  words  in  themselves  were  not  actionable  without  special  damage  ; 
and  the  learned  judge  being  of  opinion  that  the  plaintiff  having  been 
retained  by  his  master  under  a  contract  for  a  certain  time  then  unex- 
pired, it  was  not  competent  for  the  master  to  discharge  him  on  account 
of  the  words  spoken,  but  it  was  a  mere  wrongful  act  of  the  master, 
for  which  he  was  answerable  in  damages  to  the  plaintiff;  that  the 
supposed  special  damage  was  the  loss  of  those  advantages  which  the 
plaintiff  was  entitled  to  under  his  contract  with  his  master,  which  he 
could  not  in  law  be  considered  as  having  lost,  as  he  still  had  a  right 
to  claim  them  of  his  master,  who,  without  a  sufficient  cause,  had  re- 
fused to  continue  the  plaintiff  in  his  service.  2dly.  With  respect  to 
the  subsequent  refusal  of  P.  P.  to  employ  the  plaintiff,  that  it  did 
not  appear  to  be  merely  on  account  of  the  words  spoken,  but  rather 
on  account  of  his  former  master  having  discharged  him  in  conse- 
quence of  the  accusation,  without  which  he  might  not  have  regarded 
the  words. 

Jervis  now  moved  to  set  aside  the  nonsuit. 

Lord  Ellexborough,  C.  J.,  said,  that  the  special  damage  must  be 
the  legal  and  natural  consequence  of  the  words  spoken,  otherwise  it 
did  not  sustain  the  declaration  ;  and  here  it  was  an  illegal  consequence, 
a  mere  wrongful  act  of  the  master,  for  which  the  defendant  was  no 
more  answerable  than  if,  in  consequence  of  the  words,  other  persons 
had  afterwards  assembled  and  seized  the  plaintiff,  and  thrown  him 
4G 


722  SLANDER. 

into  a  horse-pond  by  way  of  punishment  for  his  supposed  transgres- 
sion. And  his  lordship  asked  whether  any  case  could  be  mentioned 
of  an  action  of  this  sort  sustained  by  proof  only  of  an  injury  sus- 
tained by  the  tortious  act  of  a  third  person.  Upon  the  second  ground, 
non  liquet  that  the  refusal  by  R.  P.  to  employ  the  plaintiff  was  in  con- 
sequence of  the  words  spoken,  as  it  is  alleged  to  be ;  there  was  at 
least  a  concurrent  cause,  the  act  of  his  former  master  in  refusing  to 
continue  him  in  his  employ,  which  was  more  likely  to  weigh  with  R. 
P.  than  the  mere  words  themselves  of  the  defendant. 

The  other  judges  concurring. 

Rule  refused. 


Slander  ;  Special  Damage  ;  Repetition  of  Slandek. 


THE  COURT  OF  COMMON  PLEAS. 


[1830.]  Ward  v.  Weeks  (7  Bing.  211). 

The  plaintiff  alleged  special  damage  from  words  spoken  by  the  defendant:  Held,  that 
this  allegation  could  not  be  supported  by  proof  that  defendant  had  spoken  the 
words  to  B.,  and  that  damage  ensued  in  consequence  of  B.'s  repeating  them  as  the 
words  of  the  defendant. 

Slander. — The  words  stated  in  the  declaration  to  have  been 
spoken  by  the  defendant  of  the  plaintiff,  were,  "  He  is  a  rogue  and  a 
swindler  ;  I  know  enough  about  him  to  hang  him  :  "  and  the  plaint- 
iff' then  alleged,  as  a  special  damage,  that  by  means  of  the  commit- 
ting of  the  several  grievances,  one  John  Bryer,  who  before  and  at 
the  time  of  the  committing  of  those  grievances  was  about  to  sell 
goods  to  the  plaintiff'  on  credit,  necessary  for  the  carrying  on  and 
commencing  of  the  plaintiff's  business  as  a  general  shopkeeper, 
which  he  was  about  to  commence,  refused  and  declined  so  to  do. 

The  defendant  pleaded  the  general  issue.  At  the  trial  of  the 
cause,  the  evidence  which  the  plaintiff  was  prepared  to  produce  was, 
that  the  defendant  had  spoken  the  words  as  laid  in  the  declaration,  to 
one  Edward  Bryce,  and  that  Bryce  had  communicated  the  statement 
as  the  statement  of  the  defendant  to  John  Bryer,  who  thereupon  re- 
fused to  trust  the  plaintiff.  Upon  this  statement  of  the  evidence,  the 
learned  judge,  who  tried  the  cause,  directed  the  plaintiff'  to  be  called. 

After  argument  on  a  rule  nisi  for  a  new  trial,  the  opinion  of  the 
court  was  delivered  by 


WARD   v.    WEEKS.  723 

Tindal,  C.  J. — This  was  an  action  upon  the  case,  in  which  the  words 
stated  in  the  declaration  to  have  been  spoken  by  the  defendant  of  the 
plaintiff  are,  "  He  is  a  rogue  and  a  swindler  :  I  know  enough  about 
him  to  hang  him  :  "  and  the  plaintiff  then  alleges,  as  a  special  dam- 
age, that  by  means  of  the  committing  of  the  several  grievances,  one 
John  Bryer,  who  before  and  at  the  time  of  the  committing  of  those 
grievances,  was  about  to  sell  goods  to  the  plaintiff  on  credit,  necessary 
for  the  carrying  on  and  commencing  of  the  plaintiff's  business  as  a 
general  shopkeeper,  which  he  was  about  to  commence,  refused  and 
declined  so  to  do. 

The  defendant  pleaded  the  general  issue. 

At  the  trial  of  the  cause,  the  evidence  which  the  plaintiff  was 
prepared  to  produce  was,  that  the  defendant  had  spoken  the  words  as 
laid  in  the  declaration,  to  one  Edward  Bryce,  and  that  Bryce  had 
communicated  the  statement,  as  the  statement  of  the  defendant,  to 
John  Bryer,  who  thereupon  refused  to  trust  the  plaintiff. 

Upon  this  statement  of  the  evidence,  the  learned  judge  who  tried 
the  cause  directed  the  plaintiff  to  be  called  ;  and  the  question  before 
us  is,  whether  this  nonsuit  should  be  set  aside  ? 

As  the  words  spoken  do  not  contain  the  charge  of  any  legal 
definite  crime,  nor  are  alleged  to  be  spoken  of  the  plaintiff  in  the 
way  of  any  trade  or  business,  so  as  to  impute  dishonesty  to  him  in 
such  trade,  the  words  are  not  actionable  per  se  /  and  the  only  ground 
of  action  is  the  special  damage  which  the  plaintiff  has  alleged.  The 
question  therefore  is,  whether  the  special  damage,  which  is  the  gist  of 
the  action,  has  been  proved  as  it  is  alleged,  or  whether  there  is  a  vari- 
ance between  the  allegation  and  the  proof  ? 

The  substance  of  the  plaintiff's  allegation  is,  that  by  reason  of  the 
defendant's  false  representations  to  divers  persons,  one  John  Bryer 
refused  to  trust  the  plaintiff.  Kow  the  evidence  necessary  to  support 
this  allegation  would  have  been,  either  that  John  Bryer  was  present 
and  heard  the  defendant  make  the  representation  to  some  person,  or, 
at  the  very  least,  that  when  the  defendant  made  such  representations 
he  directed  them  to  be  communicated  to  Bryer.  But  neither  of 
these  suppositions  exist  in  fact ;  on  the  contrary,  the  evidence  was. 
that  the  words  were  addressed  to  one  Edward  Bryce,  and  that  Bryce, 
at  a  subsequent  time  and  place,  and  without  any  authority  from  the 
defendant,  repeated  the  representation  to  Bryer,  the  repetition  of 
which  words,  and  not  the  original  statement,  occasioned  the  plaintiff's 
damage. 

Every  man  must  be  taken  to  be  answerable  for  the  necessary  con- 
sequences  of  his  own  wrongful  acts  ;    but  such  a  spontaneous  and 


724  SLANDER. 

unauthorized  communication  cannot  be  considered  as  the  necessary 
consequence  of  the  original  uttering  of  the  words.  For  no  effect 
whatever  followed  from  the  first  speaking  of  the  words  to  Bryce ;  if 
he  had  kept  them  to  himself  Bryer  would  still  have  trusted  the 
plaintiff.  It  was  the  repetition  of  them  by  Bryce  to  Bryer,  which 
was  the  voluntary  act  of  a  free  agent,  over  whom  the  defendant  had 
no  control,  and  for  whose  acts  he  is  not  answerable,  that  was  the  im- 
mediate cause  of  the  plaintiff's  damage. 

We  think  therefore  that  as  each  count  in  the  declaration  alleges, 
as  the  only  grievance,  the  original  false  speaking  of  the  words,  the 
allegation,  "  that  by  reason  of  the  committing  of  such  grievance, 
Bryer  refused  to  give  the  plaintiff  credit,"  is  not  made  out  by  the 
evidence ;  and  on  this  ground  we  think  the  nonsuit  is  right. 

It  is  argued,  that  unless  the  plaintiff  can  recover  against  the  pres- 
ent defendant  he  sustains  a  great  injury,  and  is  altogether  without 
remedy  ;  and  the  authority  in  the  fourth  resolution  in  Lord  North- 
ampton's Case,  12  Co.  134,  is  relied  upon  for  that  purpose.  But  even 
supposing  that  the  proposition  laid  down  in  that  case  is  to  be  taken 
as  an  unqualified  proposition  that  the  repetition  of  slanderous  words, 
stating  at  the  time  the  name  of  the  author,  is  upon  all  occasions,  and 
under  all  circumstances,  justifiable,  which  we  agree  in  thinking  is  far 
from  the  import  of  the  resolution,  still  we  must  look  to  the  interests 
of  the  defendant  as  well  as  those  of  the  plaintiff,  and  be  careful  not 
to  make  him  responsible  for  a  greater  measure  of  damage  than  flows 
necessarily  from  his  wrongful  acts. 

But  the  resolution  above  referred  to,  which  has  at  all  times  been 
looked  at  with  disapprobation,  has  in  the  recent  case  of  M'Pherson  v. 
Daniels  (10  B.  &  C.  263),  been  in  effect  overruled  by  the  Court  of 
King's  Bench ;  and  with  the  judgment  of  that  court,  upon  that 
occasion,  we  entirely  concur. 

We  therefore  think  the  rule  for  setting  aside  the  nonsuit  must  be 
discharged. 

Bule  discharged. 


LYNCH  v.    KNIGHT.  725 


Special  Damages  in  Slander. 


HOUSE    OF    LORDS. 

[1801.]    Lynch  v.  Knight  (9  H.  of  L.  Cases,  577;   5  L.  T. 

N.  J.  291). 

Qiuere.  Whether  a  wife  can  maintain  an  action  against  a  third  person  for  words  occa- 
sioning to  her  the  loss  of  the  consortium  of  the  husband  ? 

Per  Lord  Campbell  (Lord  Chancellor). — She  can. 

If  she  can,  the  words  must  be  such  that  from  them  the  loss  of  the  consortium  follows  as  a 
natural  and  reasonable  consequence : 

Where  therefore  a  wife  (her  husband  be'iDg  joined  for  conformity  as  a  plaintiff)  brought 
an  action  to  recover  damages  from  A.  for  slander  uttered  by  him  to  her  husband, 
imputing  to  her  that  she  had  been  almost  seduced  by  B.  before  her  marriage,  and 
that  her  husband  ought  not  to  let  B.  visit  at  his  house,  and  the  ground  of  special 
damage  alleged  was,  that  in  consequence  of  the  slander  the  husband  forced  her 
to  leave  his  house  and  return  to  her  father,  whereby  she  lost  the  consortium,  of 
her  husband : 

Held,  that  the  cause  of  complaint  thus  set  forth  would  not  sustain  the  action,  for  that  the 
alleged  ground  of  special  damage  did  not  show  (in  the  conduct  of  the  husband)  a 
natural  and  reasonable  consequence  of  the  slander.     Dub.     Lord  Wensleydale. 

Allsop  v.  Allsop  (5  H.  &  N.  534)  confirmed. 

Per  Lord  Campbell  (Lord  Chancellor),  though  a  case  is  of  first  impression,  if  it  shows  a 
concurrence  of  loss  and  damage  arising  from  the  act  complained  of,  the  action  will 
be  maintainable. 

The  loss  by  the  wife  of  her  maintenance  by  the  husband,  occasioned  by  slander  uttered 
by  a  third  person,  may  be  made  the  subject  of  a  claim  for  damages,  but  such  loss 
cannot  be  presumed  to  have  so  arisen  ;  it  must  be  distinctly  averred. 

Yicars  v.  Wilcocks  (8  East,  1),  observed  upon. 

In  such  a  case,  though  the  act  of  the  husband  in  sending  away  his  wife  was  wrongful, 
because  the  slander  was  false,  the  fact  that  it  was  false,  cannot  be  taken  advan- 
tage of  by  the  slanderer  as  an  objection  to  the  husband  appearing  on  the  record 
as  a  plaintiff. 

Observations  on  the  unsatisfactory  state  of  the  law  with  regard  to  slanders  on  women. 

In  this  case  an  action  had  been  brought  in  the  Court  of  Queen's 
Bench  in  Ireland,  in  the  names  of  Knight  and  his  wife  (the  former 
being  joined  for  conformity),  to  recover  damages  for  slanderous 
Mrords  spoken  of  the  wife.  The  words  complained  of  were  alleged 
to  have  been  uttered  to  the  husband,  and  were  thus  set  forth  in  the 
first  paragraph  of  the  plaint :  "  Jane  is  a  notorious  liar,  and  she  will 
do  her  best  to  annoy  you,  as  she  takes  delight  in  creating  disturb- 
ances wherever  she  goes,  and  I  advise  you  not  to  introduce  her  into 
society.  Any  singularity  of  conduct  which  you  may  have  observed 
in  your  wife  must  be  attributed  to  a  Dr.  Casserly  of  Roscommon,  as 


726  SLANDER. 

she  was  all  but  seduced  by  him  ;  and  I  advise  you,  if  Casserly  comes 
to  Dublin,  not  to  permit  him  to  enter  your  place,  as  he  is  a  libertine 
and  a  blackguard  ;  I  have  no  other  object  in  view  in  telling  you 
about  her  conduct,  and  in  speaking  to  you  as  I  have  done,  but  your 
own  welfare.  She  is  an  infamous  wretch,  and  I  am  sorry  that  you 
had  the  misfortune  to  marry  her ;  and  if  you  had  asked  my  advice 
on  the  subject,  I  would  have  advised  you  not  to  marry  her." 

Innuendo :  "  That  the  defendant  thereby  meant  to  impute  to  the 
plaintiff  Jane,  that  she  had  been  guilty  of  immoral  conduct  before 
her  marriage,  and  that  she  was  a  person  of  immoral  and  abandoned 
character  and  habits,  and  that  she  was  a  person  likely  to  be  guilty  of 
committing  adultery  with  said  Dr.  Casserly,  if  plaintiff  AVilliam  were 
to  permit  him  to  visit  his  said  wife ;  and  that  the  defendant  also 
meant  thereby  that  the  plaintiff  Jane  was  a  person  who,  from  her 
bad  conduct,  habits,  and  character,  was  likely  to  bring  disgrace  on 
the  plaintiff'  William,  and  that  he  ought  not  to  allow  her  to  mix  in 
society,  lest  she  might  do  some  act  which  would  bring  disgrace  on 
him  as  her  husband ;  and  that  the  defendant  further  meant  thereby 
that  the  plaintiff  "William  was  to  be  pitied  for  having  married  the 
plaintiff  Jane  from  her  immoral  character  and  abandoned  habits,  and 
that  he  should  be  on  his  guard  against  her  bringing  him  into  further 
trouble  and  disgrace  by  future  immoral  or  improper  conduct  on  her 
part." 

The  second  paragraph  set  forth  the  following  words : 
"  He  threatened  to  shoot  me.  I  told  him  of  his  wife's  miscon- 
duct. It  was  all  owing  to  his  wife.  She  had  been  insinuating  to 
him  that  he  had  seduced  her.  She  is  a  horrid  young  villain,  and 
a  notorious  liar.  Her  brother,  one  Thomas  Jones,  is  also  a  liar, 
but  his  lies  are  of  the  most  harmless  kind,  whereas  hers  are  of  the 
most  dangerous.  In  fact,  she  is  such  a  dangerous  character  to  have 
in  the  house,  that  I  was  obliged  to  have  the  back  door  in  the  yard 
nailed  up." 

Innuendo  :  "  That  the  defendant  thereby  meant  to  impute  to  the 
plaintiff  Jane  that  she  had  been  guilty  of  immorality  as  aforesaid 
with  the  said  Dr.  Casserly,  and  that,  for  the  purpose  of  trying  to 
conceal  her  said  guilty  conduct,  she  falsely  represented  to  her  hus- 
band that  the  defendant  himself  had  tried  to  seduce  her,  and  had,  in 
fact,  seduced  her  ;  and  also  that  the  defendant  meant  thereby  to  im- 
pute to  the  plaintiff'  Jane  that  she  was  a  woman  of  the  most  aban- 
doned habits  and  character,  and  that  she  was  capable  of  inventing 
any  story  to  suit  her  own  purposes,  and  that,  in  fact,  it  was  unsafe 
for  the  defendant  to  have  her  living  in  his  house  from  her  conduct 


LYNCH  v.   KNIGHT.  727 

and  character,  and  that  defendant  had,  in  fact,  been  obliged  to  adopt 
precautions  to  prevent  her  having  access  to  a  portion  of  his  premises, 
lest  she  might  commit  some  crime  therein." 

The  averment  of  special  damages  was  in  these  terms  : 

"  And  the  plaintiffs  aver  that  from  the  said  false,  scandalous,  and 
malicious  statements  of  the  defendant,  the  plaintiff  William  was  at 
first  led  to  believe,  and  that  he  did  in  fact  believe  that  his  wife,  the 
plaintiff  Jane,  had  been  guilty  of  improper  and  immoral  conduct 
before  her  marriage,  and  that  her  character  and  conduct  was  such  as 
represented  as  aforesaid  by  said  defendant ;  that  he,  the  plaintiff 
William,  ought  not  any  longer  to  live  with  the  plaintiff  Jane  as  his 
wife  ;  and  the  plaintiff  William,  influenced  solely  by  the  defendant's 
said  slanders,  and  then  believing  that  the  statements  so  made  by  the 
said  defendant,  who  was  the  stepbrother  of  his  wife,  were  true, 
.shortly  after  the  speaking  of  said  matter  by  the  defendant,  and  in 
consequence  thereof,  was  induced  to  refuse,  and  did  in  fact  refuse  to 
live  any  longer  with  the  plaintiff  Jane  as  his  wife,  and  on  the  con- 
trary, the  plaintiff  William  required  the  father  of  the  plaintiff  Jane, 
who  lived  in  the  country,  to  take  her  home  to  his  own  house,  which 
he  accordingly  did  ;  and  the  plaintiff  Jane,  in  fact,  thereupon  left 
Dublin  and  returned  to  her  father's  house,  where  she  resided  for  a 
considerable  time,  separated  from  her  said  husband.  And  the 
plaintiffs  aver  that  such  separation  was  solely  and  entirely  caused  by 
and  resulted  from  the  acts  of  the  defendant  as  aforesaid."  And  the 
plaintiffs  aver  that  they  have  sustained  damage. 

The  defendant  demurred  to  the  plaint  upon  the  grounds,  that 
the  words  not  being  actionable  in  themselves,  the  special  damage 
assigned  was  too  remote ;  also,  that  the  damage,  if  taken  to  be  dam- 
age to  the  wife  alone,  was  not  such  a  temporal  loss  as  a  court  of 
common  law  could  take  cognizance  of ;  also,  that  the  damage  com- 
plained of  having  resulted  from  the  wrongful  and  illegal  act  of  one 
of  the  plaintiffs,  he  could  not  maintain  an  action  for  it ;  also,  that 
in  any  case  the  action  being  for  words  spoken  of  the  wife,  not  ac- 
tionable in  themselves,  the  plaintiff  Jane  should  not  have  been  joined 
as  plaintiff. 

The  defendant  also,  as  a  defense,  denied  the  uttering  of  the 
words,  and  further  pleaded  that  they  were  not  spoken  in  the  sense 
imputed. 

The  issues  settled  by  the  court  were,  first,  whether  the  defendant 
spoke  the  words  ;  secondly,  whether  they  were  spoken  in  the  defam- 
atory sense  mentioned  in  the  two  paragraphs  of  the  plaint. 

The  jury  found  a  verdict  for  the  plaintiffs,  damages    1501.      The 


728  SLANDER. 

Court  of  Queen's  Bench  having  overruled  the  demurrer,  judgment 
was  given  for  the  plaintiffs  on  this  finding.  The  case  was  then  taken 
on  error  to  the  Exchequer  Chamber,  where  the  judges  were  divided 
in  opinion,  but  the  judgment  was  affirmed.  The  present  proceeding 
in  error  was  then  brought. 

After  argument  the  following  opinions  were  delivered  : 

Lord  Brougham. — My  Lords,  in  this  case  I  will  read  the  judg- 
ment of  my  noble  and  learned  friend,  the  late  Lord  Chancellor.* 
He  says : 

"  In  addition  to  hearing  the  able  arguments  at  the  bar  in  this 
case,  I  have  had  the  advantage  of  reading  the  judgments  in  extenso, 
corrected  by  themselves,  of  all  the  learned  judges  in  Ireland  who 
took  part  in  the  decision  in  the  Court  of  Queen's  Bench  or  in  the 
Court  of  Exchequer  Chamber.  I  may  be  permitted  to  observe,  that 
I  have  been  greatly  pleased  by  the  research,  the  learning,  and  the 
talent  which  they  display. 

"  After  much  consideration,  I  agree  with  the  two  dissenting 
judges  in  the  Court  of  Exchequer  Chamber.  I  am  far  from  think- 
ing the  opinions  of  the  majority  to  be  entitled  to  less  weight  from 
the  difficulty  with  .which  they  were  formed,  and  the  hesitation  with 
which  they  were  pronounced.  On  the  contrary,  I  regard  them  on 
this  account  still  more  respectfully. 

"  Were  it  not  for  one  defect  in  the  case  of  the  plaintiffs,  I  should 
have  agreed  with  them,  and  I  think  that  all  the  other  objections  to 
the  action  were  properly  overruled. 

"  Although  this  is  a  case  of  the  first  impression,  if  it  can  be 
shown  that  there  is  presented  to  us  a  concurrence  of  loss  and  injury 
from  the  act  complained  of,  we  are  bound  to  say  that  this  action 
lies.  Nor  can  I  allow  that  the  loss  of  corsortium,  or  conjugal  society, 
can  give  a  cause  of  action  to  the  husband  alone.  If  the  special  dam- 
age alleged  to  arise  from  the  speaking  of  slanderous  words,  not 
actionable  in  themselves,  results  in  pecuniary  loss,  it  is  a  loss  only  to 
the  husband  ;  and  although  it  may  be  the  loss  of  the  personal  earn- 
ings of  the  wife  living  separate  from  her  husband,  she  cannot  join 
in  the  action.  But  the  loss  of  conjugal  society  is  not  a  pecuniary 
loss,  and  I  think  it  may  be  a  loss  which  the  law  may  recognize,  to 
the  wife  as  well  as  to  the  husband.  The  wife  is  not  the  servant  of 
the  husband,  and  the  action  for  criminal  conversation  by  the  husband 
does  not,  like  the  action  by  a  father  for  seduction  of  a  daughter,  rest 

*  The  Lord  Chancellor  (Lord  Campbell)  died  on  the  23d  June,  after  the  hearing  of 
this  case,  but  before  the  judgment  was  delivered. 


LYNCH  v.   KNIGHT.  72$ 

on  any  snch  fiction  as  a  loss  of  the  services  of  the  wife.  The  better 
opinion  is  that  a  wife  could  not  maintain  or  join  in  an  action  for 
criminal  conversation  against  the  paramour  of  her  husband  who  had 
seduced  him.  But  I  conceive  that  this  rests  on  the  consideration 
that,  by  the  adultery  of  the  husband,  the  wife  does  not  necessarily 
lose  the  consortium  of  her  husband ;  for  she  may,  and,  under  certain 
circumstances,  she  ought  to  condone  and  still  enjoy  his  society  ; 
whereas  condonation  of  conjugal  infidelity  is  not  permitted  to  the 
husband,  and,  by  reason  of  the  injury  of  the  seducer,  the  consortium) 
with  the  wife  is  necessarily  for  ever  lost  to  the  husband. 

"  I  place  no  reliance  on  the  objection  that  in  a  case  like  the 
present,  the  imputation  cast  on  the  wife  being  false,  the  act  of  the 
husband  in  separating  from  her  is  wrongful,  and  therefore  he  cannot 
join  as  plaintiff  in  an  action,  the  foundation  of  which  is  his  own 
wrongful  act.  If  his  dismissal  of  the  wife  from  his  house  would 
have  been  reasonably  justifiable,  had  the  words  spoken  been  true, 
and  this  act  was  a  natural,  probable,  and  direct  consequence  of  the 
imputation,  I  do  not  think  that  the  defendant  could  avail  himself  of 
the  objection  of  the  imputation  being  false,  he  having  intended  the 
husband  to  believe  that  it  was  true,  and  having  intended  the  hus- 
band to  act  upon  it.  Mr.  Bovill  observed  that,  '  the  husband 
ought  to  have  kicked  the  slanderer  out  of  his  house,  and  not  his 
innocent  wife.'  But  we  cannot  hear  such  language  from  the  mouth 
of  his  client,  the  slanderer. 

"  From  some  expressions  of  Lord  Ellenbokougii  in  Vicars  v. 
"Wilcocks  (8  East,  1),  it  is  argued  that  such  an  action  will  not  lie 
where  the  act  is  wrongful  as  between  the  party  who  does  the  act 
and  the  party  to  whom  it  is  done.  But  if  there  be  any  error  in  that 
case,  I  think  it  was  in  supposing  that  the  offense  imputed  to  the 
servant,  even  if  he  had  been  guilty  of  it,  would  not  have  justi- 
fied his  master  in  dismissing  him  from  his  service.  I  do  not 
consider  Lord  Ellenbokocgh  to  have  held  that,  although  the  im- 
putation, if  true,  would  have  justified  the  dismissal,  the  action 
would  not  lie,  because  the  imputation  was  false,  and  the  dismissal 
was  wrongful. 

"  I  am  of  opinion  that  in  the  present  case  the  action  is  not  main- 
tainable, because,  looking  to  the  frame  of  the  declaration,  the  loss  or 
special  damage  relied  upon  is  not  the  natural  and  probable  conse- 
quence of  the  injury  complained  of,  viz.,  the  speaking  of  the 
slanderous  words.  It  is  allowed  that  the  words  are  not  actiona- 
ble in  themselves,  and  reliance  is  placed  solely  on  the  allegation, 
'that  in  consequence  thereof   the  husband  was    induced  to  refuse, 


(30  SLANDER. 

and  did,  in  fact,  refuse  to  live  any  longer  with  the  plaintiff  Jane, 
his  wife,  and  on  the  contrary  thereof  the  plaintiff  William  re- 
quired the  father  of  the  plaintiff  Jane,  who  lived  in  the  country, 
to  take  her  home  to  his  own  house,  which  he  accordingly  did  ;  and 
the  plaintiff  Jane,  in  fact,  thereupon  left  Dublin,  and  returned  to 
her  father's  house,  where  she  resided  for  a  considerable  time  separ- 
ated from  her  husband.'  ISTow,  assuming  that  this  rather  inartificial 
language  amounts  to  a  sufficient  allegation  that  in  consequence  of 
the  words  spoken  by  the  defendant,  the  plaintiff  Jane  had  for  a  time 
lost  the  conjugal  society  of  her  husband,  we  must  inquire  whether 
this  special  damage  was  the  natural  and  probable  consequence  of  the 
words  spoken.  Had  those  words  contained  a  charge  of  adultery  by 
the  wife,  which  the  defendant  pretended  to  know,  and  which  he  as- 
serted as  a  fact,  I  should  have  thought  the  allegation  of  special  clam- 
age  sufficient  to  support  the  action.  In  that  case  the  husband,  be- 
lieving the  charge  to  be  true,  would  have  been  justified  in  separating 
from  his  wife,  and  this  separation  would  have  been  the  natural  and 
direct  and  probable  consequence  of  the  slander.  Although  not  the 
necessary  consequence,  it  would  not  have  arisen  from  any  idiosyn- 
cracy  in  this  particular  husband.  Most  husbands  would  have  done 
the  same,  and  the  effect  might  have  been  foreseen,  and  might  be 
taken  to  have  been  intended  by  the  defendant  when  he  spoke  the 
words.  But,  examining  the  words  actually  spoken  as  set  out  in  the 
plaint,  they  contain  no  charge  of  adultery,  nor  any  imputation  of  any 
kind  which,  if  true,  would  justify  the  act  of  the  plaintiff  "William,  or 
would  induce  any  reasonable  man  to  do  such  an  act.  The  specific 
charge  excludes  adultery,  and  the  general  charges  amount  only  to 
levity  of  manners,  requiring  vigilance  on  the  part  of  the  husband, 
and  the  advice  given  was  consistent  with  her  remaining  in  the 
conjugal  society  of  her  husband — that  he  should  keep  her  at  home, 
k  and  not  allow  her  to  mix  in  society,  lest  she  should  thereafter  do 
some  act  which  would  brino-  disgrace  on  him.' 

"  I  think  that  Allsop  v.  Allsop  was  well  decided,  and  that  mere 
mental  suffering  or  sickness,  supposed  to  be  caused  by  the  speak- 
ing of  words  not  actionable  in  themselves,  would  not  be  special 
damage  to  support  an  action.  But  we  need  not  further  inquire 
into  the  soundness  of  that  decision,  for  in  this  case  there  is  no 
allegation  of  mental  anguish  or  bodily  suffering  in  consequence  of 
the  slander. 

"  Reliance  was  placed  on  the  action  by  a  young  woman  for  words 
not  actionable  in  themselves,  being  supported  by  the  special  damage, 
that  her  marriage  had  been   broken  off    by  slander,  although  the 


LYNCH   v.   KXIGHT.  731 

imputation  being  untrue,  the  recreant  lover  could  not  justify  his 
breach  of  contract.  But  there  the  words  must  be  such,  as  if  true, 
would  be  a  justification  to  him.  The  act  constituting  the  sj^ecia] 
damage  must  be  such  as  might  be  expected  from  a  reasonable  man 
who  believed  the  truth  of  the  words  according  to  the  intention  of 
the  slanderer. 

"  I  may  lament  the  unsatisfactory  state  of  our  law,  according  to 
which  the  imputation  by  words,  however  gross,  on  an  occasion,  how- 
ever public,  upon  the  chastity  of  a  modest  matron  or  a  pure  virgin, 
is  not  actionable  without  proof  that  it  has  actually  produced  special 
temporal  damage  to  her  ;  but  I  am  here  only  to  declare  the  law  ;  and 
being  of  opinion  that  in  this  case  the  special  damage  relied  upon 
arose,  not  from  the  natural  and  probable  effect  of  the  words 
spoken  by  the  defendant,  but  from  the  precipitation  or  idiosyn- 
craev  of  the  plaintiff  William  dismissing  the  plaintiff  Jane  from 
his  house  when  he  was  only  cautioned  not  to  let  her  mix  in  so- 
ciety, I  must,  with  sincere  deference  for  the  authority  of  the  ma- 
jority of  the  Irish  judges  advise  your  Lordships  that  the  judgment 
be  reversed." 

My  Lords,  I  entirely  agree  with  my  late  noble  and  learned  friend, 
in  his  observations,  which  I  have  read,  upon  this  case,  with  this  ex- 
ception, that  I  am  rather  inclined  to  think  (though  that  has  become 
immaterial)  that  the  action  does  not  lie.  The  words  here  are  not 
such  as  would  in  an  ordinary  case,  and  with  ordinary  persons,  nat- 
urally produce  the  effect  which  they  appear  to  have  produced  in  this 
case.  That  is  the  ground  upon  which  I  would  hold  that  the  judg- 
ment of  the  court  below  is  wrong.  The  words  did  not  impute  to 
the  wife  actual  criminality  before  marriage.  My  late  noble  and 
learned  friend  seems  to  have  thought  that  if  they  had  imputed 
actual  criminality  before  marriage  the  parties  would  stand  in  a 
different  position.  I  rather  doubt  that ;  but,  however,  it  becomes 
quite  unnecessary  to  decide  that,  because  the  words  do  not  impute 
actual  criminality,  and  therefore  we  need  not  now  consider  what 
would  be  the  effect  of  words  of  that  kind.  Here  the  words  arc  only 
that  she  had  shown  herself  false  and  deceptive,  and  that  before  mar- 
riage she  had  been,  not  seduced,  but  had  been  all  but  seduced,  by 
Dr.  Casserlv.  "  All  but  seduced  " — that  excludes  the  actually  hav- 
ing been  seduced.  I  am  clearly  of  opinion  that  these  words  in  an 
ordinary  case,  and  with  ordinary  men,  would  not  have  led  to  the 
consequence  of  the  wife  being  turned  out  of  the  house,  and  sent 
home  to  her  father.  I  am  therefore  of  opinion  that  a  sufficient 
ground  of  action  has  not  been  stated,  and  that  the  judgment  onght 
to  be  for  the  plaintiff  in  error. 


732  SLANDER. 

I  must  add,  that  I  entirely  agree  with  what  my  late  noble  and 
learned  friend  says  towards  the  end  of  his  judgment.  He  laments 
the  unsatisfactory  state  of  our  law,  according  to  which  the  imputa- 
tion by  words,  however  gross,  on  an  occasion  however  public,  upon 
the  chastity  of  a  modest  matron,  or  a  pure  virgin,  is  not  actionable 
without  proof  that  it  has  actually  produced  special  temporal  damage 
to  her.  The  only  difference  of  opinion  which  I  have  with  my  noble 
and  learned  friend  is,  that  instead  of  the  word  "  unsatisfactory,"  I 
should  substitute  the  word  "  barbarous."  I  think  that  such  a  state 
of  things  can  only  be  described  as  a  barbarous  state  of  our  law  in 
that  respect. 

Lord  Ckanwortii. — My  Lords,  we  have  had,  since  the  argument, 
an  opportunity  of  fully  considering  the  judgment  delivered  by  the 
learned  judges  in  the  Exchequer  Chamber  in  Ireland.  The  result, 
in  my  mind,  is  that  which  I  had  previously  formed,  viz.,  that  the 
view  of  the  case  taken  by  the  minority  of  those  judges  is  correct,  so 
that  the  judgment  below  ought  to  be  reversed. 

In  order  to  sustain  the  judgment  of  the  court  below,  the  defend- 
ants in  error  must  maintain  two  propositions  :  First,  that  for  slan- 
derous words  spoken  of  a  wife,  not  actionable  in  themselves,  but 
occasioning  special  damage  to  her  by  depriving  her  of  the  consort- 
ium, or  conjugal  society  of  her  husband,  the  husband  and  wife  may 
maintain  an  action  against  the  slanderer ;  and  secondly,  that  suppos- 
ing such  an  action  to  be  maintainable,  the  words  spoken  in  this  case 
were  such  as  might  naturally  occasion  the  wife  to  lose  the  consortium 
or  society  of  her  husband. 

My  late  deceased  noble  and  learned  friend,  the  late  Lord  Chan- 
cellor, I  know,  entertained  a  strong  opinion  on  the  first  point  in 
favor  of  the  right  of  action.  He  thought  that  the  consequential 
damage  arising  to  the  wife  in  such  a  case,  afforded  her  a  good  ground 
of  action ;  that  the  right  of  action  on  that  ground  was  not  confined 
to  the  husband. 

In  the  view  which  I  take  of  this  case,  I  do  not  feel  called  on  to 
express  a  decided  opinion  on  this  point.  I  believe  your  Lordships 
are  not  all  agreed  on  it,  and  I  will  therefore  only  say  that  I  am 
strongly  inclined  to  think  that  the  view  taken  by  my  late  noble 
friend  was  correct. 

But  the  ground  on  which  I  am  prepared  to  advise  your  Lord- 
ships to  reverse  the  judgment  below  is,  that  even  supposing  such  an 
action  would  lie,'  still  this  action  is  not  maintainable. 

The  special  damage,  in  order  to  afford  a  foundation  for  such  an 
action,  must  appear  to  be  the  natural,  I  do  not  say  the  necessary 


LYNCH   v.   KNIGHT.  733 

consequence  of  the  words  spoken ;  and  in  this  case,  I  cannot  come 
to  the  conclusion  that  the  conduct  pursued  by  the  husband  was  that 
which  was,  or  which  the  slanderer  could  have  supposed  likely  to 
be,  the  consequence  of  his  slander.  The  words  uttered  do  not, 
it  must  be  observed,  impute  to  the  wife  actual  criminality  before 
marriage,  but  only  that  she  had  shown  herself  false  and  decep- 
tive, and  that  before  her  marriage  she  had  been  all  but  seduced 
by  Dr.  Gasserly. 

I  cannot  say,  judicially,  that  the  natural  result  of  such  slander 
would  be  to  induce  the  husband  to  send  his  wife  back  to  her  parents, 
and  to  refuse  any  longer  to  live  with  her.  Such  conduct  on  the  part 
of  the  husband  could  not  have  been  justified  ;  he  might  have  been 
compelled  to  take  back  his  wife. 

If  the  slander  had  been  that  she  had  been  guilty  of  a  breach  of 
her  marriage  vows,  that  she  had,  since  her  marriage,  committed 
adultery — then,  indeed,  the  conduct  of  the  husband  in  sending  his 
wife  to  her  friends,  and  refusing  any  longer  to  cohabit  with  her, 
would  have  been  the  natural  result  of  the  words  spoken.  It 
would  not  then  lie  in  the  mouth  of  the  slanderer  to  say  that  they 
were  false,  or  that  the  husband  ought  not  to  have  acted  on  them  ; 
and  supposing  such  an  action  to  be  maintainable  at  all,  the  special 
damage  would  have  been  well  laid  as  being  the  natural  conse- 
quence of  the  slander.  But  in  the  present  case  I  should  have 
thought  that  the  natural  result  of  the  imputations  would  have 
been  to  lead  the  husband  to  watch  his  wife  more  carefully,  to 
take  care  that  she  was  never  allowed  to  meet  Dr.  Casserly,  and 
to  attempt,  as  far  as  possible,  to  reclaim  her  from  the  habits  of 
deception  and  falsehood  into  which  she  was  represented  to  have 
fallen  before  her  marriage. 

On  the  ground,  therefore,  that  the  plaint  or  declaration  does  not 
state  any  consequential  damage  to  the  wife  as  flowing  naturally  from 
the  words  spoken,  I  am  of  opinion  that  judgment  ought  to  be  given 
for  the  plaintiff  in  error. 

Lord  Wensleydale. — My  Lords,  since  the  argument  at  your 
Lordships'  bar,  we  have  been  furnished  with  copies  of  all  the 
judgments  delivered  in  the  Queen's  Bench,  and  in  the  Court  of 
Error  in  Ireland,  in  which  the  case  is  argued  on  both  sides  with 
very  great  ability,  and  every  authority,  I  believe,  bearing  on  the 
questions,  cited.  With  the  great  additional  aid  derived  from  these 
judgments,  I  have  given  those  questions  every  consideration  in  my 
power,  and,  not  without  considerable  difficulty  and  doubt,  have 
come  to  the  conclusion  that  the  judgment  of  the  Court  of  Error 


734  SLANDER. 

ought  to  be  reversed,  and  judgment  given  for  the  plaintiff  in 
error. 

The  questions  in  the  case  are  two  :  1st.  Whether  a  wife  can 
maintain  an  action  for  the  loss  of  the  consortium  of  the  husband  by 
a  wrongful  act  of  the  defendant  (joining,  of  course,  her  husband  for 
conformity)  %  and  2d.  Whether  the  loss  of  that  consortium  is  suffi- 
ciently connected  with  and  shown  to  be  the  consequence  of  the  de- 
fendant's wrongful  act  in  this  case,  so  as  to  be  actionable  ? 

There  is  a  considerable  doubt  upon  both  these  questions,  but 
particularly  on  the  first.  I  have  made  up  my  mind  that  no  such  ac- 
tion will  lie. 

To  test  this,  suppose  an  action  brought  by  the  wife  for  false  im- 
prisonment of  the  husband  by  the  defendant,  for  a  period  of  time, 
by  which  she  lost  the  consortium  of  the  husband  during  that  time. 
AVould  such  action  lie  ?  If  it  would  not,  a  fortiori,  no  action  could 
be  maintained  for  slander  attended  with  the  special  damage  of 
the  loss  of  the  husband's  society,  caused  immediately  by  his  own 
act. 

It  is  certainly  an  objection  of  the  greatest  weight  to  such  an 
action  that  there  is  no  precedent  or  authority  of  any  kind  in  favor 
of  it. 

It  is  contended  that  it  may  be  supported  by  analogy  to  the  ac- 
tion which  the  husband  may  unquestionably  maintain  for  an  injury 
to  the  wife  j)er  quod  consortium  amisit. 

I  agree  with  Baron  Fitzgerald,  that  the  benefit  which  the  hus- 
band has  in  the  consortium  of  the  wife,  is  of  a  different  character 
from  that  which  the  wife  has  in  the  consortium  of  the  husband. 
The  relation  of  the  husband  to  the  wife  is  in  most  respects  entirely 
dissimilar  from  that  of  the  master  to  the  servant,  yet  in  one  respect 
it  has  a  similar  character.  The  assistance  of  the  wife  in  the  conduct 
of  the  household  of  the  husband,  and  in  the  education  of  his  chil- 
dren, resembles  the  service  of  a  hired  domestic,  tutor  or  governess  ; 
is  of  material  value,  capable  of  being  estimated  in  money  ;  and  the 
loss  of  it  may  form  the  proper  subject  of  an  action,  the  amount  of 
compensation  varying  with  the  position  in  society  of  the  parties. 
This  property  is  wanting  in  none.  It  is  to  the  protection  of  such 
material  interests  that  the  law  chiefly  attends. 

Mental  pain  or  anxiety  the  law  cannot  value,  and  does  not  pre- 
tend to  redress,  when  the  unlawful  act  complained  of  causes  that 
alone ;  though  where  a  material  damage  occurs,  and  is  connected 
with  it,  it  is  impossible  a  jury,  in  estimating  it,  should  altogether 
overlook  the  feelings  of  the  party  interested.      For  instance,  where 


LYNCH   v.   KXIGHT.  735 

a  daughter  is  seduced,  however  deeply  the  feelings  of  the  parent 
may  be  affected  by  the  wicked  act  of  the  seducer,  the  law  gives  no 
redress,  unless  the  daughter  is  also  a  servant,  the  loss  of  whose  serv- 
ice is  a  material  damage  which  a  jury  has  to  estimate ;  when  juries 
estimate  that,  they  usually  cannot  avoid  considering  the  injured 
honor  and  wounded  feelings  of  the  parent. 

The  loss  of  such  service  of  the  wife,  the  husband,  who  alone  has 
all  the  property  of  the  married  parties,  may  repair  by  hiring  another 
servant ;  but  the  wife  sustains  only  the  loss  of  the  comfort  of  her 
husband's  society  and  affectionate  attention,  which  the  law  cannot 
estimate  or  remedy.  She  does  not  lose  her  maintenance,  which  he 
is  bound  still  to  supply  ;  and  it  cannot  be  presumed  that  the  wrong- 
ful act  complained  of  puts  an  end  to  the  means  of  that  support  with- 
out an  averment  to  that  effect. 

And  if  there  were  such  an  averment,  the  recovery  of  a  compen- 
sation must  be  by  joining  the  husband  in  the  suit,  who  himself  must 
receive  the  money,  which  would  not  advance  the  wife's  remedy. 
The  wife  is,  in  fact,  without  redress  by  any  form  of  action  for  an 
injury  to  her  pecuniary  interests. 

That  the  loss  of  the  comfort  of  the  society  and  attention  of 
friends  by  a  wrongful  act  does  not  support  an  action  for  slander  is 
fully  settled  by  the  case  of  Moore  v.  Meagher  (1  Taunt.^9)  ;  and  the 
wife  can  have  no  right  of  action  for  a  loss  of  the  same  character, 
though  of  a  much  higher  degree,  for  the  loss  of  that  of  her  husband. 
To  the  same  effect  is  the  case  of  Medhurst  v.  Balam  (cited  in  1 
Siderf.  397). 

For  these  reasons,  I  think  the  wife  has  no  remedy  in  the  sup- 
posed case  of  the  wrongful  imprisonment  of  the  husband  :  and  by 
parity  of  reasoning,  she  can  have  none  for  being  deprived  of  the 
society  of  her  husband  by  the  slander  of  another  upon  her  character, 
causing  him  to  desert  her,  especially  when  we  consider  that  the  dam- 
age in  this  ease  is  immediately  caused  by  the  husband's  own  volun- 
tary  act. 

This  view  of  the  case  makes  it  unnecessary  to  consider  whether 
the  slander  of  the  defendant  has  been  proved  to  be  the  cause  of  the 
loss — the  desertion  by  the  husband — so  as  to  make  the  words  action- 
able, they  not  being  so  unless  they  have  caused  a  special  damage. 
Upon  this  question  1  am  much  influenced  by  the  able  reasoning  of 
Mr.  Justice  Christian.  I  strongly  incline  to  agree  with  him,  that 
to  make  the  words  actionable,  by  reason  of  special  damage,  the  con- 
sequence must  be  such  as,  taking  human  nature  as  it  is,  with  its  in- 
firmities, and  having  regard  to  the  relationship  of  the  parties  con- 


736  SLANDER. 

cerned,  might  fairly  and  reasonably  have  been  anticipated  and  feared 
would  follow  from  the  speaking  the  words,  not  what  would  reason- 
ably follow,  or  we  might  think  ought  to  follow. 

I  agree  with  the  learned  judges,  that  the  husband  was  not  justi- 
fied in  sending  his  wife  away.  I  think  he  is  to  blame  ;  but  I  think 
that  such  deliberate  and  continued  accusations,  of  such  a  character, 
coming  from  such  a  quarter,  might  reasonably  be  expected  so  to  op- 
erate and  to  produce  the  result  which  they  did. 

In  the  case  of  Vicars  v.  Wilcocks  (8  East,  1),  I  must  say  that  the 
rules  laid  down  by  Lord  Ellenborough  are  too  restricted.  That 
which  I  have  taken  from  Mr.  Justice  Christian  seems  to  me,  I  own, 
correct.  I  cannot  agree  that  the  special  damage  must  be  the  natural 
and  legal  consequence  of  the  words,  if  true.  Lord  Ellenborough 
puts  as  an  absurd  case,  that  a  plaintiff  could  recover  damages  for 
being  thrown  into  a  horse-pond,  as  a  consequence  of  words  spoken  ; 
but  I  own  I  can  conceive  that  when  the  public  mind  was  greatly 
excited  on  the  subject  of  some  base  and  disgraceful  crime,  an  ac- 
cusation of  it  to  an  assembled  mob  might,  under  particular  circum- 
stances, very  naturally  produce  that  result,  and  a  compensation 
might  be  given  for  an  act  occurring  as  a  consequence  of  an  accusa- 
tion of  that  crime. 

I  think  the  judgment  of  the  Court  of  Exchequer  Chamber  should 
be  reversed. 

Judgment  reversed. 

Note. — Where  the  plaintiff's  business  as  a  trader  has  been  injured,  as  the 
natural  consequence  of  anything  said,  and  an  action  is  therefore  maintainable,  it 
is  sufficient  for  him  to  show  that  from  the  time  of  the  injury  his  business  has 
fallen  off,  and  it  is  unnecessary  to  prove  that  any  particular  persons  have  ceased 
to  deal  with  him.  Riding  v.  Smith,  1  L.  R.  Exch.  Div.  91.  See  Georgia  v.  Kep- 
ford,  45  Iowa,  48. 


DA  VIES   v.    SOLOMON.  73  < 

COURT    OF    QUEER'S    BENCH. 

[1871.]  Davies  v.  Solomon  (L.  R.  7  Q.  B.  112). 

Special  damage  in  slander ;  consortium  ;  slander  of  married  woman ;  imputation  of  un- 
chastity ;  special  damage;  action  by  husband  and  wife;  loss  of  hospitality  of 
friends. 

Declaration,  by  husband  and  wife,  charged  a  slander  imputing 
want  of  chastity  to  the  wife,  whereby  she  was  "  injured  in  her  char- 
acter and  reputation,  and  became  alienated  from  and  deprived  of  the 
cohabitation  of  her  husband,  and  lost  and  was  deprived  of  the  com- 
panionship, and  ceased  to  receive  the  hospitality  of  divers  friends, 
and  especially  of  her  husband,"  and  others  named,  who  had  "  by 
reason  of  the  premises  withdrawn  from  the  companionship  and  ceased 
to  be  hospitable  to  or  friendly  with  her." 

Demurrer  and  joinder  in  demurrer. 

Blackburn,  J. — The  sole  difficulty  in  deciding  the  case  is  caused 
by  the  opinion  of  Lord  Wensleydale,  in  Lynch  v.  Knight  (9  H.  L. 
C.  577).  He  held  that  no  action  would  lie  for  slander  of  a  wife 
when  the  only  special  damage  alleged  was  the  loss  to  the  plaintiff  of 
the  consortium  of  her  husband.  In  the  present  case,  however,  it  is 
unnecessary  to  decide  this  question,  for  the  declaration,  after  alleging 
the  loss  of  cohabitation  by  the  wife,  proceeds  to  aver  that  "  she  lost 
and  was  deprived  of  the  companionship,  and  ceased  to  receive  the 
hospitality  of  divers  friends."  Now,  first,  was  that  consequence  such 
as  might  reasonably  and  naturally  be  expected  to  follow  from  the 
speaking  of  the  slanderous  words?  Judging  from  the  habits  and 
manners  of  society  of  all  the  consequences  that  might  be  expected  to 
result  from  a  statement  that  a  woman  had  committed  adultery,  or  had 
been  guilty  of  unchastity,  the  most  natural  would  be  that  those  who 
had  invited  her  and  given  her  hospitality  would  thenceforth  cease  to 
do  so.  Then  Moore  v.  Meagher  (1  Taunt.  39)  decides  that  the  loss  of 
the  hospitality  of  friends  is  sufficient  special  damage  to  sustain  an  ac- 
tion like  the  present  ;  and  the  hospitality,  as  the  word  is  there  used, 
means  simply  that  persons  receive  another  into  their  houses,  and  give 
him  meat  and  drink  gratis.  Perhaps  such  a  definition  may  rather 
extend  the  signification  of  the  word,  but  it  is  true  in  effect — for  if 
they  do  not  receive  him,  or  if  they  make  him  pay  for  his  entertain- 
ment, that  is  not  hospitality.  In  Roberts  v.  Roberts  (5  B.  &  S.  3S4 ; 
L.  J.  33  Q.  B.  219),  it  is  to  be  observed,  that  the  loss  suffered  by  the 
plaintiff  in  being  excluded  from  a  religious  society,  was  not  temporal, 
and  was  therefore  held  not  to  be  enough.  But  in  the  present  case 
47 


738  EXCESSIVE   DAMAGES. 

there  is  a  matter  of  temporal  damage — small  though  it  be — laid  in 
the  declaration.  It  is  also  argued,  that  inasmuch  as  this  action  is 
brought  by  the  wife,  the  husband  being  merely  joined  for  conform- 
ity, the  damage  necessary  to  give  a  right  to  recover  must  be  damage 
to  her  alone,  and  that  the  loss  of  hospitality  which  she  has  hitherto 
enjoyed,  is  only  pecuniary  loss  to  her  husband  and  not  to  her.  That 
certainly  is  a  plausible  argument,  as  the  husband  is  of  course  bound 
to  maintain  his  wife  and  to  supply  her  with  food,  although  her  friends 
cease  to  do  so.  I  am,  however,  unwilling  to  agree  with  such  artificial 
reasoning,  and  I  think  that  the  real  damage  in  this  case  is  to  the  wife 
herself.  Not  withstanding  that  it  is  the  husband's  duty  to  support  his 
wife,  he  is  only  bound  to  provide  her  with  necessaries  suitable  to  his 
station  in  life ;  and  she  might,  by  visiting  friends  in  a  higher  position 
than  himself,  enjoy  luxuries  which  he  either  could  not  or  might  not 
choose  to  afford  her.  But  I  should  be  sorry  to  say  that  we  must  enter 
into  a  nice  inquiry  as  to  whether  such  hospitality  would  save  the 
purse  of  the  husband  or  of  the  wife.  I  am,  therefore,  of  opinion 
that  the  declaration  is  good,  and  the  demurrer  must  be  overruled. 

Mellor  and  Hannen,  JJ.,  concurred. 

Judgment  for  the  plaintiffs. 

Note. — The  jury  may,  in  actions  for  slander,  consider  the  degree  of  malice 
with  which  the  slander  was  uttered,  as  shown  by  the  defendant's  subsequent 
acts,  but  cannot  give  damages  for  such  acts.  Stitzell  v.  Reynolds,  67  Penn.  St. 
54  (1871). 


EXCESSIVE  DAMAGES. 

SUPREME  COURT,  ILLINOIS. 


[1869.]    Illinois  Central  Railroad  Company  v.  Welch 

(52  111.  183). 


Excessive  damages  ;  actions  against  corporations. 


Appeal  from  the  Circuit  Court  of  Cook  County  ;  the  Hon.  E.  S. 
Williams,  Judge,  presiding. 

The  facts  in  this  case  are  fully  stated  in  the  opinion. 

Mr.  Justice  Lawrence  delivered  the  opinion  of  the  court  : 


ILLINOIS   CENTRAL   R.  R.  CO.  v.  WELCH.  739 

The  facts  of  this  case  are  stated  with  substantial  correctness  in 
one  of  the  arguments  by  counsel  for  appellant,  as  follows  : 

The  Illinois  Central  Railroad  track  at  Mendota  is  about  18  inches 
from  the  edge  of  the  awning,  which  projects  from  the  station  house, 
so  that  when  a  freight  car  stands  upon  the  track,  the  inside  edge  of 
the  car  is  about  even  with  the  outer  edge  of  the  awning. 

The  awning  is  about  18  inches  higher  than  the  top  of  the  car. 

On  the  28th  day  of  February,  1866,  Welch  was  a  brakeman  on  a 
freight  train  running  on  that  road.  The  cars  were  coming  in  to 
Mendota  at  a  rate  of  speed  about  as  fast  as  a  man  could  walk.  Welch 
was  walking  by  the  side  of  the  train  for  the  purpose  of  cutting  off  a 
portion  of  it.     There  was  a  ladder  on  each  side  of  the  car. 

The  plaintiff  had  pulled  out  the  pin  and  disconnected  a  portion  of 
the  train  from  the  engine,  anct  was  walking  along  beside  the  train 
when  the  engineer  signaled  for  brakes.  The  plaintiff  ran  up  the 
ladder  on  the  car  on  the  side  next  the  station  house,  and  before  he 
reached  the  roof  of  the  car  he  was  struck  by  the  projecting  awning, 
and  knocked  from  the  car ;  his  left  arm  was  broken,  and  injured  so 
that  it  had  to  be  amputated.  The  left  side  of  his  head  was  bruised 
with  a  scalp  wound  over  the  same.  Was  treated  by  physicians  until 
about  the  1st  of  May,  1866. 

It  should  be  further  stated  that  the  attention  of  the  division 
superintendent  and  division  engineer  had  been  sometime  previously 
called  to  the  dangerous  position  of  this  awning. 

When  the  engineer  called  for  brakes,  it  was  the  duty  of  the  ap- 
pellee to  mount  the  car  for  the  purpose  of  applying  them.  He  was 
therefore  injured  while  in  the  performance  of  his  duty  in  obedience 
to  an  order.  The  jury  found  a  verdict  for  plaintiff  for  ten  thousand 
dollars,  on  which  the  court  rendered  judgment. 

After  disposing  of  questions  relating  to  the  right  of  action,  the 
learned  judge  proceeded  as  follows. 

The  damages  are  excessive.  It  has  become  a  matter  of  public 
notoriety,  and  is  evidenced  by  many  of  the  records  brought  to  this 
court,  that  juries  may  generally  assess  an  amount  of  damages  against 
railway  corporations  which,  in  similar  cases  between  individuals, 
would  be  considered  unjust  in  the  extreme.  It  is  lamentable  that  the 
popular  prejudice  against  these  corporations  should  be  so  powerful  as 
to  taint  the  administration  of  justice,  but  we  cannot  close  our  eyes  to 
the  fact.  When  this  becomes  apparent,  the  courts  must  interfere. 
However  natural  this  prejudice,  or  however  well  deserved,  it  cannot 
be  permitted  to  find  expression  in  unjust  verdicts.  A  railway  com- 
pany is  entitled  to,  and  must  receive,  the  same  measure  of  justice 


740  EXCESSIVE   DAMAGES. 

that  is  meted  out  in  a  suit  between  John  Doe  and  Richard  Roe. 
Juries  must  be  taught,  if  possible,  that  when  they  enter  the  jury 
box  they  are  entering  upon  a  duty  so  high  and  solemn  that  they  must 
shrink  from  the  influence  of  prejudice  or  passion  as  they  would 
shrink  from  crime.  Doubtless  the  twelve  men  who  composed  this 
jury  were,  individually,  honest  men,  but  we  cannot  believe  they  had 
a  proper  sense  of  their  duty  and  responsibility  as  jurors.  There  was 
in  this  case  no  malice  or  oppression  on  the  part  of  the  company,  and 
therefore  no  room  for  vindictive  damages.  The  injury  to  the  plaint- 
iff was  merely  an  accident,  resulting,  it  is  true,  from  the  carelessness 
of  the  company,  but  still,  an  accident  in  the  sense  that  it  was  unin- 
tentional. The  injury,  although  severe,  is  not  one  that  wholly  disa- 
bles the  plaintiff.  He  testifies  that  he  has  since  been  learning  the 
trade  of  a  printer.  His  wages  as  a  brakeman  were  forty  dollars  per 
month,  amounting  to  480  dollars  per  annum.  The  annual  income  he 
would  derive  from  $10,000,  the  amount  of  this  verdict,  would  be,  at 
the  ordinary  rate  of  interest  in  this  State,  one  thousand  dollars.  The 
wages  he  was  receiving  would  not  amount  to  this  verdict  in  twenty 
years.  In  one  sense,  it  is  true,  a  pecuniary  value  cannot  be  placed 
upon  an  arm.  But  inasmuch  as  the  law  can  give  only  a  pecuniary 
compensation,  and  as  the  plaintiff  seeks  that  by  his  suit,  we  are 
obliged  to  take  a  practical  and  almost  unfeeling  view  of  this  question, 
and  when  the  injury  is  one  that  will  still  leave  a  plaintiff  able  to 
earn  as  much,  in  many  occupations,  as  he  was  earning  before  the  ac- 
cident, we  must  hold  a  verdict  to  be  unreasonable  which  gives  him  at 
once  a  sum  larger  than  the  great  majority  of  the  community  earn  by 
a  long  life  of  toil,  and  the  interest  of  which  would  amount  to  more 
than  twice  his  wages.  When  we  consider  this,  and  remember  that 
such  verdicts  for  injuries  inflicted  without  design  or  malice,  are  never 
rendered  in  suits  between  individuals,  and  that  the  statute  limits  the 
damages  for  the  loss  of  life  to  five  thousand  dollars,  we  think  it  our 
duty  to  pronounce  the  damages  in  this  case  excessive. 

The  judgment  is  reversed  and  the  cause  remanded. 

Judgment  reversed. 


COOK   v.  ELLIS.  741 


EXEMPLARY   DAMAGES. 

Exemplary  Damages  ;  Criminal  Punishment  for  the  Offense 
which  is  the  Subject  of  the  Action  is  no  Bar  to  the  Re- 
covery of  Exemplary  Damages,  and  it  seems  should  not  be 
admi'lted  in  evidence  to  mltigate  the  damages. 


SUPREME   COURT,    NEW  YORK. 

[1844.]  Cook  v.  Ellis  (6  Hill,  466). 

In  vindictive  actions  for  damages  jurors  are  authorized  to  give  exemplary  damages,  not- 
withstanding the  defendant  may  have  been  convicted  and  punished  in  a  criminal  suit 
for  the  same  offense. 

It  seems  that  evidence  of  punishment  for  the  same  offense  in  a  criminal  suit  should  not 
be  received,  even  in  mitigation. 

The  defendant  committed  an  aggravated  assault  upon  the  plaintiff, 
for  which  he  was  indicted,  tried,  convicted,  and  fined  $250,  which  he 
paid.  Subsequently  the  plaintiff  brought  this  action  for  assault  and 
battery,  in  the  Circuit  Court,  Clinton  county,  alleging  the  same 
offense.  The  defendant  proved  the  former  conviction  as  a  bar  to  any 
claim  beyond  actual  damages.  The  defendant's  counsel  requested  the 
court  to  charge  that  the  previous  conviction  and  punishment  were  a 
bar  to  vindictive  damages.  This  request  was  denied,  and  Willard, 
C.  J.,  charged  that  the  jury  were  not  prevented  by  the  criminal  pro- 
ceedings from  giving  exemplary  damages,  if  they  thought  proper,  but 
that  they  might  consider  the  fine  and  its  payment  in  determining  the 
amount  of  their  verdict.  The  jury  found  for  the  plaintiff,  assessing 
the  damages  at  $550,  and  the  defendant  moved  for  a  new  trial  on  a 
case. 

Per  Curiam.  This  action  is  for  an  assault  made  upon  the  plaint- 
iff' with  intent  to  have  carnal  connection  with  her.  It  is  not  denied 
that  there  were  circumstances  in  proof  which  authorized  the  jury  to 
give  exemplary  damages,  had  not  the  defendant  been  convicted  and 
fined  $250  for  the  same  assault,  which  he  had  paid.  This,  it  is  in- 
sisted, barred  all  claim  beyond  the  actual  damages.  The  judge  charged 
that  the  criminal  proceedings  did  not  prevent  the  jury  from  giving 
exemplary  damages  if  they  chose  ;  though  the  fine  and  payment  were 
proper  to  be  considered. in  fixing  the  amount  which  they  would  allow 
the  plaintiff. 


742  EXEMPLARY   DAMAGES. 

We  have  examined  the  several  authorities  cited  on  the  part  of  the 
defendant,  and  find  none  of  them  so  favorable  to  him  as  the  learned 
judge  was  in  this  case,  unless  indeed  a  remark  in  1  Chit.  General 
Practice  (p.  17,  Am.  ed.  of  1834)  forms  an  exception.  But  the  author 
does  not  pretend  to  be  sustained  by  any  adjudged  case,  at  least  he 
cites  none ;  and  we  think  he  is  mistaken.  In  vindictive  actions — 
and  this  is  agreed  to  come  within  that  class — jurors  are  always  au- 
thorized to  give  exemplary  damages  where  the  injury  is  attended 
with  circumstances  of  aggravation  ;  and  the  rule  is  laid  down  with- 
out the  qualification  that  we  are  to  regard  either  the  possible  or  the 
actual  punishment  of  the  defendant  by  indictment  and  conviction  at 
the  suit  of  the  people.  That  the  criminal  suit  is  not  a  bar  to  the 
civil,  and  that  no  court  will  drive  the  prosecutor  to  elect  between 
them,  if  the  former  be  by  indictment,  is  entirely  settled  (Jones  v. 
Clay,  1  Bos.  &  Pull.  191 ;  Jacks  v.  Bell,  3  Carr.  &  Payne,  310).  He 
may  proceed  by  both  at  the  same  time  (Id.)  ;  nor  will  the  court  even 
stay  proceedings  in  the  civil  action  to  govern  themselves  by  the  event 
of  a  pending  criminal  prosecution  (Caddy  v.  Barlow,  1  Man.  &  Kyi. 
275). 

We  concede  that  smart  money  allowed  by  a  jury,  and  a  fine  im- 
posed at  the  suit  of  the  people,  depend  on  the  same  principle.  Both 
are  penal,  and  intended  to  deter  others  from  the  commission  of  the 
like  crime.  The  former,  however,  becomes  incidentally  compensatory 
for  damages,  and,  at  the  same  time,  answers  the  purposes  of  punish- 
ment. The  recovery  of  such  damages  ought  not  to  be  made  depend- 
ent on  what  has  been  done  by  way  of  criminal  prosecution,  any  more 
than  on  what  may  be  done.  Nor  are  we  prepared  to  concede  that 
either  a  fine,  an  imprisonment,  or  both,  should  be  received  in  evi- 
dence to  mitigate  damages.  True,  if  excluded,  a  double  punishment 
may  sometimes  ensue  ;  but  the  preventive  lies  with  the  criminal 
rather  than  the  civil  courts.  The  former  have  ample  power,  if  they 
choose  to  exert  it,  of  preventing  any  great  injury  from  excess  of  pun- 
ishment. In  a  proper  case,  if  the  party  aggrieved  will  not  release  his 
private  injury,  or  stipulate  to  waive  a  suit  for  it,  or  at  least  to  waive 
all  claim  for  smart  money,  the  court  may,  after  conviction,  either  im- 
pose a  fine  merely  nominal,  or  stay  proceedings  till  a  trial  shall  be  had 
in  the  civil  action,  and  govern  themselves  accordingly  in  the  final  in- 
fliction of  punishment.  This,  or  something  equivalent,  has  often  been 
done.  The  more  usual  case  in  England  is,  where  the  party  comes  as 
the  principal  actor  in  the  prosecution  by  way  of  applying  for  a  crim- 
inal information.  The  court  will  then  make  it  a  condition  that  he 
shall  waive  his  right  of  action  (Rex  v.  Sparrow,  2  T.  P.  198  ;  see  also 


COOK   v.   ELLIS.  743 

Eex  v.  Fielding,  2  Burr.  654;  2  Kenyon's  Rep.  386,  S.  C.)  Indeed, 
so  common  has  this  become,  that  the  very  application  by  the  party 
is  said  to  be  considered  as  an  implied  stipulation  not  to  bring  a 
private  suit.  This  will  therefore  be  stayed  (Id.;  Tidd.  Pr.  9  Am.  ed. 
1840).  And  even  where  he  proceeds  by  indictment,  the  court  often, 
in  effect,  turn  over  the  whole  case  to  be  disposed  of  by  action,  in  the 
method  before  mentioned.  The  more  usual  course  is  to  stay  proceed- 
ings on  the  criminal  side,  till  those  on  the  civil  side  are  at  an  end 
(Commonwealth  v.  Bliss,  1  Mass.  32;  Commonwealth  v.  Elliot,  2  Id. 
372).  This  is  not  done  with  us  till  after  conviction  (The  People  v. 
General  Sessions  of  Genesee,  13  John.  84) ;  and  such  is  no  doubt  the 
better  practice. 

In  Jacks  v.  Bell  (3  Carr.  &  Payne,  316),  the  party  had  received, 
on  the  certificate  of  the  judges,  a  portion  of  several  fines,  amounting 
to  more  than  the  actual  damage  he  had  sustained  by  the  assault.  This 
was  pursuant  to  the  practice  mentioned  in  1  Chit.  Cr.  Law,  8,  810. 
In  a  civil  action,  therefore,  Lord  Tenterden,  C.  J.,  directed  a  verdict 
for  one  farthing  only,  saying  that  no  certificate  for  the  sum  received 
would  have  been  given  by  the  court,  unless  it  had  been  with  the  un- 
derstanding that  no  action  was  to  be  brought.  The  judges  might, 
without  doubt,  have  prevented  an  action  entirely,  had  they  required  a 
release  or  stipulation  as  the  condition  of  their  certificate.  The  dam- 
ages were  properly  mitigated,  because  the  party  had  actually  got  his 
full  compensation.  It  is  believed  that  no  case  goes  further ;  and  even 
this  would  not  authorize  the  jury  to  notice  what  fine  may  have  been 
paid  to  the  people.  Of  that  the  party  gets  nothing.  The  judges  in 
this  country  are  not  authorized  to  give  it  to  him. 

On  the  whole,  we  are  of  opinion  that  the  charge  was  quite  as 
favorable  to  the  defendant  as  he  could  possibly  claim,  not  to  say 
more  so. 

New  trial  denied. 

Note. — See  also  Edwards  v.  Leavitt,  46  Vt.  126  (1873).  In  a  late  decision  in 
New  Hampshire,  it  is  held  that,  in  an  action  of  tort,  it  is  incorrect  for  the  jury 
to  separate  what  is  called  actual  from  what  is  called  exemplary  damage.  Exem- 
plary damages  are  the  whole  damage,  estimated  by  the  more  liberal  rule  which 
obtains  in  the  case  of  a  malicious  wrong  (Bixby  v.  Dunlap,  56  N.  H.  456). 


744  EXEMPLARY   DAMAGES. 

Exemplary  Damages  in  Action  for    Consequential  Damages. 


COURT   OF    EXCHEQUER. 

[i860.]  Emblen  v.  Myers  (C  H.  and  K  54). 

In  an  action  for  willful  negligence,  the  jury  may  take  into  consideration  the  motives  of 
the  defendant,  and  if  the  negligence  is  accompanied  with  a  contempt  of  the  plaintiffs 
rights  and  convenience,  the  jury  may  give  exemplary  damages. 

At  the  trial,  before  Wilde,  B.,  at  the  London  sittings  in  last 
Trinity  Terra,  it  appeared  that  the  plaintiff  was  the  owner  of  a  small 
piece  of  land,  in  Gravel  Lane,  Houndsditch,  on  which  he  bnilt  a 
stable  and  loft,  for  the  purpose  of  his  trade  as  a  coal  and  coke  dealer. 
The  defendant  was  the  owner  of  an  adjoining  house,  which,  being  in 
a  dilapidated  state,  he  was  required  by  the  police  to  pull  down.  The 
defendant  had  applied  to  the  plaintiff  to  purchase  his  premises,  but 
the  plaintiff  refused  to  sell  them.  The  laborers  employed  by  the  de- 
fendant pulled  down  his  house  in  such  a  reckless  manner  that  a  large 
piece  of  timber  fell  on  the  plaintiff's  stable  and  knocked  in  the  roof, 
which  fell  upon  the  horse  and  cart  of  the  plaintiff.  At  that  time  the 
plaintiff's  wife  was  in  the  stable.  The  plaintiff  remonstrated  with 
the  defendant,  but  he  said  that  the  plaintiff  had  served  him  with  a 
lawyer's  letter  and  a  writ,  and  that  he  would  go  on.  The  defendant 
told  the  laborers  they  might  "  work  anyhow,"  and  they  threw  down 
upon  the  stable  great  quantities  of  bricks,  by  which  more  injury  was 
caused  to  the  stable  than  by  the  pulling  down  of  the  house  ;  and  it 
was  suggested  that  this  was  done  with  a  view  to  cause  the  plaintiff 
to  give  up  the  stable. 

The  learned  judge  told  the  jury  that  they  should  take  into  con- 
sideration all  the  circumstances,  both  the  conduct  of  the  defendant 
and  the  expressions  he  used,  and  that  if  they  were  of  opinion  that 
the  destruction  of  the  stable  was  caused  by  the  negligence  of  the  de- 
fendant in  pulling  down  the  houses,  they  should  give  such  damages 
as  they  thought  a  reasonable  compensation  for  the  injury  the  plaint- 
iff had  sustained  ;  but  if  they  were  of  opinion  that  what  was  done  by 
the  defendant  was  done  willfully,  with  a  high  hand,  for  the  purpose 
of  trampling  on  the  plaintiff  and  driving  him  out  of  possession  of  the 
stable,  they  might  find  exemplary  damages.  The  jury  having  found 
a  verdict  for  the  plaintiff,  with  T5Z.  damages. 

A  rule  nisi  for  a  new  trial  having  been  obtained  on  the  grounds 
that  the  learned  judge's  instructions  were  wrong,  and  that  the  dam- 


EMBLEN   v.   MYERS.  745 

ages  were  excessive,  counsel  were  heard  for  and  against  the  rule, 
whereupon  the  following  opinions  were  delivered  : 

Pollock,  C.  B. — We  are  all  of  opinion  that  the  rule  ought  to  be 
discharged.  I  consider  that  the  direction  of  the  learned  judge  was 
substantially  this  :  "  In  measuring  these  damages,  you  may  take  into 
consideration  expressions  used  by  the  defendant  showing  a  contempt 
of  the  plaintiff's  rights  and  convenience."  It  is  universally  felt,  by 
all  persons  who  have  had  occasion  to  consider  the  question  of  com- 
pensation, that  there  is  a  difference  between  an  injury  which  is  the 
mere  result  of  such  negligence  as  amounts  to  little  more  than  acci- 
dent, and  an  injury,  willful  or  negligent,  which  is  accompanied  with 
expressions  of  insolence.  I  do  not  say  that  in  actions  of  negligence 
there  should  be  vindictive  damages,  such  as  are  sometimes  given  in 
actions  of  trespass,  but  the  measure  of  damage  should  be  different, 
according  to  the  nature  of  the  injury  and  the  circumstances  with 
which  it  is  accompanied.  It  appears  to  me  that  this  declaration  may 
be  read  as  charging  a  willful  wrong.  It  is  true  that  the  complaint 
is  that  the  defendant  acted  negligently  and  with  a  want  of  due  care ; 
but  it  is  also  stated  that  he  wrongfully  and  injuriously  pulled  down 
the  house,  and  consequently  the  injury  was  one  which  would  admit 
of  damages  to  an  amount  beyond  that  which  the  learned  judge,  by 
his  direction,  invited  the  jury  to  give.  The  courts  have  always 
recognized  the  distinction  between  damages  given  with  a  liberal  and 
a  sparing  hand ;  and,  since  the  language  of  this  declaration  is  such 
that  it  may  be  read  as  charging  a  willful  wrong,  and  as  it  appears 
that  the  wrong  was  accompanied  with  expressions  of  contempt,  I 
think  that  the  direction  of  the  learned  judge  was  correct,  that  the 
damages  are  not  excessive,  and,  consequently,  the  rule  must  be  dis- 
charged. 

Bramwell,  B. — I  am  also  of  opinion  that  the  direction  of  the 
learned  judge  was  perfectly  correct.  As  soon  as  it  is  admitted  that 
the  plaintiff*  may  recover  more  than  the  actual  loss,  and  that  collat- 
eral facts  may  be  inquired  into,  that  principle  applies,  whether  the 
injury  was  caused  by  the  negligent  or  willful  act  of  the  defendant. 
Suppose  a  person  caused  a  nuisance  in  front  of  another  man's  house, 
damages  might  be  given  for  the  insult  as  well  as  the  actual  injury. 
It  is  said  that  the  act  of  the  defendant  was  willful,  and  therefore  the 
plaintiff  cannot  recover  on  this  declaration  ;  but  the  act  was  negligent 
as  well  as  willful.  In  my  opinion  the  plaintiff  is  entitled  to  recover 
the  whole  amount  which  he  has  chosen  to  claim.  If  a  plaintiff,  in 
his  particulars,  claimed  500/.  because  the  defendant  walked  over  his 


74G  EXEMPLARY   DAMAGES. 

• 
lawn,  the  jury  miglit  award  that  amount  if  they  thought  it  was  done 

for  the  purpose  of  annoyance  and  insult. 

Channell,  B. — At  first  I  thought  that  the  declaration  might  be 
treated  as  charging  an  act  of  trespass  as  well  as  negligence  ;  but,  on 
looking  more  closely  into  it,  I  think  it  must  be  read  as  charging  the 
defendant  with  willful  negligence.  Then  it  remains  to  be  seen 
whether  the  summing  up  of  the  learned  judge  was  correct.  In  sub- 
stance it  was  this  :  "  You  may  take  into  consideration  all  the  circum- 
stances, and  see  whether  there  is  anything  to  satisfy  you  that  the 
defendant  behaved  in  an  improper  and  unjustifiable  manner  ;  and  if 
so,  you  need  not  give  damages  strictly,  as  in  the  case  of  mere  negli- 
gence, but  you  may  give  them  with  a  liberal  hand."  If  in  actions 
of  trespass  the  plaintiff:  may  recover  damages  beyond  the  amount  of 
the  actual  injury,  I  see  no  reason  why  the  same  rule  should  not  ex- 
tend to  willful  negligence.  As  to  the  statement  that  the  damages 
are  given  for  something  willful,  not  negligent,  the  objection  should 
have  been  taken  at  the  trial,  that  the  evidence  was  not  receivable 
upon  such  a  declaration.  For  these  reasons  I  think  the  rule  ought 
to  be  discharged. 

Wilde,  B. — I  am  of  the  same  opinion.  I  am  glad  the  court  have 
come  to  the  conclusion  that  upon  this  declaration  it  was  competent 
for  the  jury  to  give  exemplary  damages,  because  it  appeared  to  me 
at  Nisi  Prius  that  the  case  was  a  harsh  one,  and  that  the  defendant 
acted  with  a  high  hand,  intending  to  turn  the  plaintiff  out  of  posses- 
sion. It  is  said  that,  under  this  declaration,  evidence  as  to  willfully 
destroying  the  plaintiff's  shed  ought  not  to  have  been  admitted  ;  but 
the  defendant's  counsel  permitted  it  to  be  given  without  the  slight- 
est objection.  Then,  assuming  that  was  one  of  the  matters  to  be  in- 
quired into,  there  is  no  foundation  for  the  objection  that  the  damages 
are  excessive.  It  is  impossible  to  say  that  when  a  wrong  is  commit- 
ted in  the  mode  in  which  it  was  here  committed,  the  circumstances 
attending  its  commission  are  not  to  be  taken  into  consideration  by 
the  jury,  with  the  view  of  properly  estimating  the  damage.  I  did 
not  tell  them  to  find  distinct  damages  in  consequence  of  the  de- 
fendant's conduct,  but  to  take  into  consideration  all  the  circum- 
stances, both  the  conduct  of  the  defendant  and  the  expressions 
he  used. 

Rule  discharged. 

Note. — It  seems  settled  by  the  preponderance  of  authority,  that  exemplary 
damages  may  be  recovered,  in  actions  against  corporations,  for  the  willful  or 
grossly  negligent  acts  of  their  servants.     See  Belknap  v.  Railroad,  49  N.  H.  358; 


DAY  t.   WOODWORTH.  747 

Caldwell  v.  N.  J.  Steamboat  Co.  47  KY.  282;  Goddard  v.  Grand  Trunk  Railway 
Co.  57  Me.  202  ;  Eckert  v.  St.  Louis  Transfer  Co.  2  Missouri  App.  3G. 

But  a  master  is  not  liable  for  punitory  damages  for  the  act  of  his  servant. 
done  under  circumstances  which  would  give  no  right  to  the  plaintiff  as  against 
the  servant,  had  the  suit  been  against  him  instead  of  his  master.  Hamilton  v. 
The  Third  Avenue  Railroad  Co.  53  N.  Y.  25. 

"  For  injuries  for  the  negligence  of  a  servant,  while  engaged  in  the  business  of 
the  master,  within  the  scope  of  his  employment,  the  latter  is  liable  for  compen- 
satory damages;  but  for  such  negligence,  however  gross  or  culpable,  he  is  not 
liable  to  be  punished  in  punitive  damages  unless  he  is  also  chargeable  with  gross 
misconduct."  Opinion  of  the  N.  Y.  Court  of  Appeals,  per  Church,  Ch.  J. 
Cleghorn  v.  New  York  Central  and  Hudson  River  Railroad  Co.  56  N.  Y.  44. 

But  if  the  servant's  injurious  act  be  authorized,  or  be  subsequently  ratified  by 
the  master,  the  master  is  liable  in  punitory  damages.  Bass  v.  The  Chicago  and 
Northwestern  Railway  Co.  42  Wise.  654. 

Where  an  action  against  a  carrier  is  ex  contracto  for  breach  of  his  agreement, 
and  not  ex  delicto  for  his  violation  of  duty,  exemplary  damages  cannot  be  al- 
lowed.    Walsh  v.  The  Chicago,  Milwaukee  and  St.  Paul  Railway  Co.  42  Wise.  23. 

It  is  held  by  the  Supreme  Court  of  the  United  States,  that  to  authorize  the 
infliction  of  exemplary  damages,  for  an  iujury  to  a  passenger  on  a  railway  train, 
occasioned  by  a  collision,  the  absence  of  the  care  necessary,  under  the  circum- 
stances, is  not  sufficient.  There  must  have  been,  to  do  this,  some  willful  mis- 
conduct or  that  entire  want  of  care  which  would  raise  the  presumption  of  a 
conscious  indifference  to  consequences.  Milwaukee  &  St.  Paul  Railway  Co.  i\ 
Army  et  al.  91  U.  S.  C.  R.  (1  Otto),  489. 


COSTS  AND  COUNSEL  FEES. 

Costs  ;    Counsel  Fees  ;    Exemplary  Damages. 


SUPREME  COURT,  UNITED  STATES. 

[1851.]  Day  v.  Woodworth  (13  How.  3G3). 

The  suit  being  brought  by  the  owner  of  a  mill  dam  below,  against  the  owners  of  a  mill 
above,  for  forcibly  taking  down  a  part  of  the  dam,  upon  the  allegation  that  it  injured 
the  mill  above,  it  was  proper  for  the  court  to  charge  the  jury,  that,  if  they  found  for 
the  plaintiff,  upon  the  ground  that  his  dam  caused  no  injury  to  the  mill  above,  thev 
should  allow,  in  damages,  the  cost  of  restoring  so  much  of  the  dam  as  was  taken  down, 
and  compensation  for  the  necessary  delay  of  the  plaintiff's  mill ;  and  they  might  also 
allow  such  sum  for  the  expenses  of  prosecuting  the  action,  over  and  above  the  taxable 
costs,  as  they  should  find  the  plaintiff  had  necessarily  incurred,  for  counsel  fees,  and 
the  pay  of  engineers  in  making  surveys,  &c. 


T4S  COSTS  AND  COUNSEL  FEES. 

But  if  they  should  find  for  the  plaintiff,  on  the  ground  that  the  defendants  bad  taken 
down  more  of  the  dam  than  was  necessary  to  relieve  the  mill  above,  then,  they  would 
allow  in  damages  the  cost  of  replacing  such  excess,  and  compensation  for  any  delay 
or  damage  occasioned  by  such  excess ;  but  not  anything  for  counsel  fees  or  extra 
compensation  to  engineers,  unless  the  taking  down  of  such  excess  was  wanton  and 
malicious. 

In  actions  of  trespass,  and  all  actions  on  the  case  for  torts,  a  jury  may  give  exemplary  or 
vindictive  damages,  depending  upon  the  peculiar  circumstances  of  each  case.  But 
the  amount  of  counsel  fees,  as  such,  ought  not  to  be  taken  as  the  measure  of  punish- 
ment, or  a  necessary  element  in  its  infliction. 

The  doctrine  of  costs  explained. 

Whether  the  verdict  would  carry  costs  or  not,  was  a  question  with  which  the  jury  had 
nothing  to  do. 


This  case  was  brought  up,  by  writ  of  error,  from  the  Circuit  Court 
of  the  United  States  for  the  District  of  Massachusetts. 

It  was  an  action  of  trespass  quare  clausumf regit  brought  by  Day, 
a  citizen  of  New  York,  against  the  defendants  in  error,  citizens  of 
Massachusetts,  for  pulling  down  a  mill-dam  within  the  town  of  Great 
Barrington,  in  the  county  of  Berkshire,  Massachusetts. 

The  defendants  put  in  a  plea  of  not  guilty,  and  also  a  special  plea 
of  justification,  viz. : 

Mr.  Justice  Grier  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error  was  plaintiff  below  in  an  action  of  trespass, 
charging  the  defendants  with  tearing  down  and  destroying  his  mill- 
dam.  The  defendants  pleaded  in  justification  that  the  Berkshire 
Woollen  Company  owned  mills  above  the  dam  of  plaintiff,  who  ille- 
gally erected  and  maintained  the  same,  so  as  to  injure  the  mills  above; 
that  by  direction  of  said  company,  and  as  their  agents  and  servants, 
they  did  enter  plaintiff's  close,  and  did  break  down  and  demolish  so 
much  of  the  plaintiff's  dam  as  was  necessary  to  remove  the  nuisance  and 
injury  to  the  mills  above,  and  no  more,  and  as  they  lawfully  might. 
To  this  plea  the  plaintiff  replied  de  injuria,  &c. 

The  learned  judge,  after  affirming  the  correctness  of  the  ruling 
of  the  judge  at  the  trial,  in  favor  of  the  defendants'  right  to  begin, 
proceeded  as  follows : 

The  great  question,  on  the  trial  of  this  case,  appears  to  have  been 
whether  the  plaintiff's  dam  was  higher  than  he  had  a  right  to  main- 
tain it,  and  if  so,  whether  the  defendants  had  torn  down  more  of  it, 
or  made  it  lower  than  they  had  a  right  to  do. 

The  plaintiff's  counsel  requested  the  court  to  instruct  the  jury  that 
"  they  might  allow  counsel  fees,  &c,  if  there  was  any  excess  in  taking 
down  more  of  the  dam  than  was  justifiable,  and  give  as  a  reason  that 
the  defendants  thereby  became  trespassers  ab  initio." 


DAY  v.   WOODWORTH.  749 

The  court  instructed  the  jury  "  that  if  they  should  find  for  the  plaint- 
iff on  the  first  ground,  viz.,  that  the  defendants  had  taken  down  more 
of  the  dam  than  was  necessary  to  relieve  the  mills  above,  unless  such 
excess  was  wanton  and  malicious,  then  the  jury  would  allow  in  dam- 
ages the  cost  of  replacing  such  excess,  and  compensation  for  any  delav 
or  damage  occasioned  by  such  excess,  but  not  anything  for  counsel  fees 
or  extra  compensation  to  engineers." 

This  instruction  of  the  court  is  excepted  to,  on  two  grounds: 
First,  because  "  this  being  an  action  of  trespass,  the  plaintiff  was  not 
limited  to  actual  damages  proved  ;  "  and,  secondly,  that  the  jury, 
under  the  conditions  stated  in  the  charge,  should  have  been  instructed 
to  include  in  their  verdict  for  the  plaintiff,  not  only  the  actual  damages- 
suffered,  but  his  counsel  fees  and  other  expenses  incurred  in  prosecut- 
ing his  suit. 

It  is  a  well-established  principle  of  the  common  law,  that,  inactions 
of  trespass  and  all  actions  on  the  case  for  torts,  a  jury  may  inflict  what 
are  called  exemplary,  punitive,  or  vindictive  damages  upon  a  defend- 
ant, having  in  view  the  enormity  of  his  offense,  rather  than  the  meas- 
ure of  compensation  to  the  plaintiff.  AYe  are  aware  that  the  propriety 
of  this  doctrine  has  been  questioned  by  some  writers ;  but  if  repeated 
judicial  decisions  for  more  than  a  century  are  to  be  received  as  the 
best  exposition  of  what  the  law  is,  the  question  will  not  admit  of  ar- 
gument. By  the  common,  as  well  as  by  statute  law,  men  are  often 
punished  for  aggravated  misconduct  or  lawless  acts,  by  means  of  a 
civil  action,  and  the  damages,  inflicted  by  way  of  penalty  or  punish- 
ment, given  to  the  party  injured.  In  many  civil  actions,  such  as  libel, 
slander,  seduction,  &c,  the  wrong  done  to  the  plaintiff  is  incapable  of 
being  measured  by  a  money  standard  ;  and  the  damages  assessed  de- 
pend on  the  circumstances,  showing  the  degree  of  moral  turpitude  or 
atrocity  of  the  defendant's  conduct,  and  may  properly  be  termed  exem- 
plary or  vindictive,  rather  than  compensatory. 

In  actions  of  trespass,  where  the  injury  has  been  wanton  and  ma- 
licious, or  gross  and  outrageous,  courts  permit  juries  to  add  to  the 
measured  compensation  of  the  plaintiff  which  he  would  have  been  en- 
titled to  recover,  had  the  injury  been  inflicted  without  design  or  inten- 
tion, something  farther  by  way  of  punishment  or  example,  which  has 
sometimes  been  called  "  smart  money."  This  has  been  always  left  to 
the  discretion  of  the  jury,  as  the  degree  of  punishment  to  be  thus  in- 
flicted must  depend  on  the  peculiar  circumstances  of  each  case.  It 
must  be  evident,  also,  that  as  it  depends  upon  tjie  degree  of  malice,  wan- 
tonness, oppression,  or  outrage  of  the  defendant's  conduct,  the  punish- 
ment of  his  delinquency  cannot  be  measured  by  the  expenses  of  the 


750  COSTS   AND    COUNSEL   FEES. 

plaintiff  in  prosecuting  his  suit.  It  is  true  that  damages,  assessed  by 
way  of  example,  may  thus  indirectly  compensate  the  plaintiff  for 
money  expended  in  counsel  fees  ;  but  the  amount  of  these  fees  cannot 
be  taken  as  the  measure  of  punishment  or  a  necessary  element  in  its 
infliction. 

This  doctrine  about  the  right  of  the  jury  to  include  in  their  ver- 
dict, in  certain  cases,  a  sum  sufficient  to  indemnify  the  plaintiff  for 
counsel  fees,  and  other  real  or  supposed  expenses  over  and  above  taxed 
costs,  seems  to  have  been  borrowed  from  the  civil  law  and  the  practice 
of  the  courts  of  admiralty.  At  first,  by  the  common  law,  no  costs 
were  awarded  to  either  party,  eo  nomine.  If  the  plaintiff  failed  to 
recover,  he  was  amerced  pro  falso  clamore.  If  he  recovered  judg- 
ment, the  defendant  was  in  misericordia  for  his  unjust  detention  of 
the  plaintiff's  debt,  and  was  not  therefore  punished  with  the  expensa 
litis  under  that  title.  But  this  being  considered  a  great  hardship,  the 
statute  of  Gloucester  (6  Ed.  1,  c.  1)  was  passed,  which  gave  costs  in  all 
cases  where  the  plaintiff  recovered  damages.  This  was  the  origin  of 
costs  de  incremento  /  for  when  the  damages  were  found  by  the  jury, 
the  judges  held  themselves  obliged  to  tax  the  moderate  fees  of  counsel 
and  attorneys  that  attended  the  cause.     (See  Bac.  Abr.  tit.  Costs). 

Under  the  provisions  of  this  statute  every  court  of  common  law 
has  an  established  system  of  costs,  which  are  allowed  to  the  successful 
party  by  way  of  amends  for  his  expense  and  trouble  in  prosecuting 
his  suit.  It  is  true,  no  doubt,  and  is  especially  so  in  this  country 
(where  the  legislatures  of  the  different  States  have  so  much  reduced 
attorneys'  fee-bills,  and  refused  to  allow  the  honorarium  paid. to  coun- 
sel to  be  exacted  from  the  losing  party),  that  the  legal  taxed  costs  are 
far  below  the  real  expenses  incurred  by  the  litigant ;  yet  it  is  all  the 
law  allows  as  expensa  litis.  If  the  jury  may,  "  if  they  see  fit,"  allow 
counsel  fees  and  expenses  as  a  part  of  the  actual  damages  incurred  by 
the  plaintiff,  and  then  the  court  add  legal  costs  de  incremento,  the  de- 
fendants may  be  truly  said  to  be  in  misericordia,  being  at  the  mercy 
both  of  court  and  jury.  Neither  the  common  law,  nor  the  statute  law 
of  any  State,  so  far  as  wre  are  informed,  has  invested  the  jury  with  this 
power  or  privilege.  It  has  been  sometimes  exercised  by  the  permis- 
sion of  courts,  but  its  results  have  not  been  such  as  to  recommend  it 
for  general  adoption  either  by  courts  or  legislatures. 

The  only  instance  where  this  power  of  increasing  the  ''actual 
damages  "  is  given  by  statute,  is  in  the  patent  laws  of  the  United 
States.  But  there  it  is  given  to  the  court  and  not  to  the  jury.  The 
jury  must  find  the  "  actual  damages  "  incurred  by  the  plaintiff  at  the 
time  his  suit  was  brought ;  and  if,  in  the  opinion  of  the  court,  the  cle- 


DAY   v.    WOODWORTH.  751 

fendant  has  not  acted  in  good  faith,  or  has  been  stubbornly  litigious, 
or  has  caused  unnecessary  expense  and  trouble  to  the  plaintiff,  the 
court  may  increase  the  amount  of  the  verdict,  to  the  extent  of  trebling 
it.  But  this  penalty  cannot,  and  ought  not,  to  be  twice  inflicted ; 
first,  at  the  discretion  of  the  jury,  and  again  at  the  discretion  of  the 
court.  The  expenses  of  the  defendant,  over  and  above  taxed  costs, 
are  usually  as  great  as  those  of  the  plaintiff  ;  and  yet  neither  court 
nor  jury  can  compensate  him,  if  the  verdict  and  judgment  be  in  his 
favor,  or  amerce  the  plaintiff  pro  falso  clamore  beyond  tax  costs. 
Where  such  a  rule  of  law  exists  allowing  the  jury  to  find  costs  de 
incremeuto  in  the  shape  of  counsel  fees,  or  that  equally  indefinite  and 
unknown  quantity  denominated  (in  the  plaintiff's  prayer  for  instruc- 
tion) "  &c,"  they  should  be  permitted  to  do  the  same  for  the  defend- 
ant where  he  succeeds  in  his  defense,  otherwise  the  parties  are  not 
suffered  to  contend  in  an  equal  field.  Besides,  in  actions  of  debt, 
covenant,  and  assumpsit,  where  the  plaintiff  always  recovers  his  actual 
damages,  he  can  recover  but  legal  costs  as  compensation  for  his  expen- 
diture in  the  suit,  and  as  punishment  of  defendant  for  his  unjust  de- 
tention of  the  debt ;  and  it  is  a  moral  offense  of  no  higher  order  to 
refuse  to  pay  the  price  of  a  patent,  or  the  damages  for  a  trespass, 
which  is  not  willful  or  malicious,  than  to  refuse  the  payment  of  a  just 
debt.  There  is  no  reason,  therefore,  why  the  law  should  give  the 
plaintiff  such  an  advantage  over  the  defendant  in  one  case,  and  refuse 
it  in  the  other.  (See  Barnard  v.  Poor,  21  Pickering,  382  ;  and  Lin- 
coln v.  The  Saratoga  Railroad,  29  "Wendell,  435. 

We  are  of  opinion,  therefore,  that  the  instruction  given  by  the 
court,  in  answer  to  the  prayer  of  the  plaintiff,  was  correct. 

The  instruction  to  the  jury,  also,  was  dearly  proper  as  respected 
the  measure  of  the  damages,  and  that  the  jury  had  nothing  to  do  with 
the  question  whether  their  verdict  would  carry  costs.  The  judgment 
is  therefore  affirmed. 

Note.— Counsel  fees  cannot  even  be  considered  by  Ihe  jury  in  estimating 
damages  for  the  infringement  of  a  patent  right  (Tecse  v.  Huntington,  23  How. 
U.S.  2). 

So  in  an  action  for  overflowing  the  plaintiff's  lands,  the  defendant  having  pleaded 
that  the  suit  was  wrongfully  brought  in  order  to  harass  him,  and  claimed  damages 
for  the  loss  of  the  sale  of  his  land,  and  for  his  expenses  for  attorney's  fees  caused 
by  the  suit,  and  the  jury  having  found  a  verdict  in  his  favor,  which  included 
compensation  for  these  items,  they  were  both  held  to  have  beeu  improperly  al- 
lowed for  (Salado  College  v.  Davis,  47  Tex.  131). 


752  COSTS   AND   COUNSEL   FEES. 

Legal  Expenses  and  Counsel  Fees. 


SUPREME    COURT,    MASSACHUSETTS. 

[1877.]    Inhabitants  of  Westfibld  v.  Amaziah  Mayo  (122 

Mass.  100). 

A  town,  which  defends  an  action  brought  against  it  to  recover  for  an  injury  caused  by 
the  negligence  of  the  defendant  in  creating  an  obstruction  upon  the  highway,  and 
which  notifies  him  of  the  pendency  thereof,  and  requests  him  to  defend  it,  may  re- 
cover not  only  the  amount  of  the  judgment  recovered  against  it,  but  also  reasonable 
expenses  incurred  in  defending  the  same,  including  counsel  fees. 

This  was  an  action  of  tort  tried  before  a  judge  of  the  Superior 
Court,  without  a  jury,  to  recover  the  amount  of  a  judgment  paid  by 
the  plaintiff  to  Mary  J.  Hanchett,  for  injuries  sustained  by  her 
through  the  defendant's  negligence,  upon  a  highway  which  the  plaint- 
iff was  bound  to  keep  in  repair,  and  also  $150,  the  expenses  of  the 
suit  in  which  that  judgment  was  recovered. 

The  Supreme  Court,  per  Morton,  J.,  affirmed  the  judgment, 
which  was  entered  in  the  court  below  for  the  amount  of  the  former 
judgment,  and  interest.  But,  on  the  point  whether  the  recovery 
should  include  the  sum  of  $150,  paid  out  by  the  plaintiff  for  counsel 
fees  in  the  original  action,  the  court  directed  further  argument. 

"Written  arguments  having  been  submitted  accordingly,  and  con- 
sidered by  all  the  judges,  the  following  opinion  was  delivered. 

Lord,  J. — The  remaining  question  in  this  case  is,  whether  the 
plaintiff  shall  recover  the  amount  paid  as  counsel  fees  in  the  suit 
against  the  town,  which,  it  is  agreed,  are  reasonable,  if  in  law  they  are 
to  be  allowed.  The  defendant  was  notified  by  the  town  of  the  pen- 
dency of  the  original  suit,  and  was  requested  to  defend  it,  which  lie 
declined  to  do. 

The  difficulty  is  not  in  stating  the  rule  of  damages,  but  in  deter- 
mining whether  in  the  particular  case  the  damages  claimed  are  within 
the  rule.  Natural  and  necessary  consequences  are  subjects  of  dam- 
ages; remote,  uncertain  and  contingent  consequences  are  not. 
Whether  counsel  fees  are  natural  and  necessary,  or  remote  and  con- 
tingent, in  the  particular  case,  we  think  may  be  determined  upon  sat- 
isfactory principles ;  and,  as  a  general  rule,  when  a  party  is  called 
upon  to  defend  a  suit,  founded  upon  a  wrong,  for  which  he  is  held 
responsible  in  law  without  misfeasance  on  his  part,  but  because  of  the 
wrongful  act  of  another,  against  whom  he  has  a  remedy  over,  counsel 
fees  are  the  natural  and  reasonably   necessary   consequence   of  the 


INHABITANTS   OF   WESTFIELD   v.   MAYO.  753 

wrongful  act  of  the  other,  if  he  has  notified  the  other  to  appear  and 
defend  the  suit.  When,  however,  the  claim  against  him  is  upon  his 
own  contract,  or  for  his  own  misfeasance,  though  he  may  have  a 
remedy  against  another  and  the  damages  recoverable  maybe  the  same 
as  the  amount  of  the  judgment  recovered  against  himself,  counsel  fees 
paid  in  defense  of  the  suit  against  himself  are  not  recoverable. 

The  decision  in  Reggio  v.  Braggiotti  (7  Cush.  166),  is  adverse  to 
the  allowance  of  counsel  fees,  as  falling  within  the  latter  class.  In 
that  case  the  plaintiff  sold  to  Henshaw,  Ward  &  Co.  an  article  with  a 
warranty  that  it  was  known  in  commerce  as  opium ;  and  Henshaw, 
Ward  &  Co.  recovered  damages  against  the  plaintiff  upon  his  war- 
ranty. They,  having  made  the  warranty,  were  responsible  for  dam- 
ages resulting  from  the  breach  of  their  own  contract.  The  defendant 
in  that  case  had  made  a  similar  warranty  to  the  plaintiffs,  and  al- 
though they  were  liable  to  him  upon  that  warranty,  it  was  held  that 
they  were  not  liable  for  counsel  fees  paid  in  defending  their  own  war- 
ranty. Although  the  reasons  for  that  decision,  which  are  very  briefly 
given,  are  not  the  same  which  we  now  assign  in  support  of  it,  the  de- 
cision itself  is  sustained  by  the  authorities. 

In  Baxendale  v.  London,  Chatham  &  Dover  Railway  (L.  R.  10 
Ex.  35),  it  appeared  that  one  Harding  had  contracted  with  the 
plaintiff  to  convey  certain  valuable  pictures  from  London  to  Paris. 
The  plaintiff,  by  another  contract,  agreed  with  the  defendant  for  the 
carriage  by  the  defendant  of  the  same  pictures  to  the  same  destina- 
tion. The  pictures  were  damaged  in  the  transportation.  Harding 
brought  his  action  against  the  plaintiff  for  damage  to  the  pictures 
upon  the  contract  between  them  and  recovered.  The  plaintiff  then 
brought  his  action  against  the  defendant  for  breach  of  its  contract 
with  him  ;  and  the  defendant  denied  its  liability,  but  being  held  liable, 
the  question  arose  whether  counsel  fees  which  the  plaintiff  had  ex- 
pended in  defense  of  Harding's  claim  upon  him  should  be  added  as 
damages  to  the  amount  recovered  by  Harding;  and  it  was  held  that 
they  could  not  be. 

In  Fisher  v.  Val  de  Travers  Asphalte  Co.  (1  C.  P.  D.  511),  the 
same  result  was  reached.  In  that  case  the  plaintiff  made  a  contract 
with  a  tramway  company  to  construct  a  tramway  in  a  workmanlike 
manner  with  Val  de  Travers  asphalte  and  concrete,  and  to  keep  the 
same  in  good  order  for  twelve  months.  The  plaintiff  also  contracted 
with  the  defendant  to  construct  for  him  the  same  tramway  and  with 
like  warranty.  The  plaintiff,  however,  did  not  make  the  contract  with 
the  defendant  to  construct  the  tramway  for  himself,  but  he  had  agreed 
to  construct  it  for  the  Metropolitan  Tramway  Company,  which  was 
48 


754  COSTS   AND   COUNSEL   FEES. 

the  owner  of  the  tramway.  One  Hicks  sustained  an  injury  by  reason 
of  the  defective  condition  of  the  way,  and  commenced  proceedings 
against  the  Metropolitan  Tramway  Company  for  damages,  and  the 
Metropolitan  Tramway  Company  notified  the  plaintiff,  and  the  plaint- 
iff notified  the  defendant.  The  defendant  declined  to  interfere.  The 
plaintiff,  however,  took  upon  himself  the  defense  of  the  suit  against 
the  tramway  company,  and  adjusted  it ;  and  the  settlement  was  found 
to  be  a  reasonable  and  proper  one.  In  his  action  against  the  defend- 
ant, he  contended  that  his  counsel  fees  incurred  in  the  previous  pro- 
ceedings should  be  added  to  the  amount  paid  to  Hicks.  Brktt  and 
Lindley,  JJ.,  in  their  several  opinions,  felt  themselves  bound  by  the 
decision  in  Baxendale  v.  London,  Chatham  &  Dover  Railway,  above 
cited,  but  thought  that,  if  they  were  not  precluded  by  that  decision, 
they  should  have  great  difficulty  in  refusing  to  allow  counsel  fees  in 
addition  to  the  amount  paid  as  damages ;  but  Lord  Coleridge,  C.  J., 
while  holding  that  that  decision  was  conclusive,  was  not  prepared  to 
say  that  it  was  not  right  in  principle.  And  he  uses  this  very  sug- 
gestive language :  "  The  tramway  company  contract  with  Fisher ; 
Fisher  contracts  with  the  defendants,  and  the  claim  of  Hicks  arises 
from  negligence  of  the  latter.  Are  the  defendants  to  be  liable  to 
three  sets  of  costs,  because  the  actions  may  have  been  reasonably  de- 
fended ?  If  they  are,  the  consequences  may  be  serious.  If  not,  at 
which  link  of  the  chain  are  the  costs  to  drop  out  ?  " 

Following  this  suggestion,  if,  in  the  case  of  Reggio  v.  Braggiotti, 
there  had  been  ten  successive  sales  instead  of  two,  and  each  with  the 
same  implied  warranty,  and  successive  suits  had  been  brought  by  the 
ten  successive  purchasers,  each  against  his  warrantor,  would  the  first 
seller  be  liable  for  such  accumulation  of  counsel  fees  upon  his  con- 
tract of  .warranty  ?  If  not,  in  the  pertinent  language  just  quoted,  "  at 
which  link  of  the  chain  are  the  costs  to  drop  out  ? "  In  each  of  these 
cases,  it  will  be  observed  that  the  counsel  fees  were  paid  in  defending 
a  suit  upon  the  party's  own  contract. 

In  the  present  case  the  plaintiff  was  not  compelled  to  incur  the 
counsel  fees  by  reason  of  any  misfeasance,  or  of  any  contract  of  its 
own,  but  was  made  immediately  liable  by  reason  of  the  wrong-doing 
of  the  defendant.  There  seems,  therefore,  to  be  no  ground,  in  prin- 
ciple, by  which  it  should  be  precluded  from  recovering  as  a  part  of 
its  damages,  the  expenses  reasonably  and  properly  incurred  in  conse- 
quence of  the  wrong-doing  of  the  defendant.  Within  this  rule  a  mas- 
ter, who  is  immediately  responsible  for  the  wrongful  acts  of  a  servant, 
though  there  is  no  misfeasance  on  his  part,  might  recover  against 
such  servant  not  only  the  amount  of  the  judgment  recovered  against 


INHABITANTS   OF   WESTFIELD   v.    MAYO.  755 

him,  but  his  reasonable  expenses  including  counsel  fees,  if  notified  to 
defend  the  suit.  It  may  be  said  in  that  case,  as  in  this,  that  there 
may  be  a  technical  misfeasance,  or  rather  nonfeasance,  in  not  guard- 
ing more  carefully  the  conduct  of  the  servant,  or  in  watching  for  ob- 
structions in  the  street ;  but  no  negligence  is  necessary  to  be  proved 
in  either  case  as  matter  of  fact  ;  the  party  is  directly  liable  because  of 
the  wrong  of  another,  whatever  diligence  he  may  have  himself  exer- 
cised. It  does  not,  however,  apply  to  cases  where  one  is  defending 
his  own  wrong  or  his  own  contract,  although  another  may  be  respon- 
sible to  him. 

In  Lowell  v.  Boston  &  Lowell  Railroad  (23  Pick.  24),  the  question 
was  raised  whether  the  defendant  was  liable  over  to  the  plaintiff  for 
damages  which  had  been  recovered  against  the  plaintiff  by  reason  of  a 
defective  highway,  which  defect  was  caused  by  the  defendant.  That 
is  the  leading  case  in  this  Commonwealth,  in  which  it  is  settled  that 
the  municipal  corporation  which  is  bound  by  law  to  keep  its  roads 
safe  and  convenient  is  not  in  pari  delicto  with  the  party  by  whose  di- 
rect act  the  defect  exists.  That  decision  is  based  upon  the  principle 
that  the  keeping  of  roads  safe  and  convenient  is  a  corporate  obliga- 
tion imposed  by  law  ;  and  although  it  does  not  in  words  declare  that  it 
is  immaterial  whether  there  was  negligence  in  fact,  the  existence  of 
the  defect  during  the  statute  time  is  recognized  as,  of  itself,  conclu- 
clnsively  establishing  the  legal  liability  of  the  municipality.  In  that 
case,  the  question  was  directly  raised  whether  the  costs  of  suit,  in- 
cluding the  reasonable  counsel  fees,  were  recoverable.  In  the  discus- 
sion by  Mr.  Justice  Wilde,  who  delivered  the  opinion,  no  distinction 
was  made  between  taxable  costs  and  reasonable  counsel  fees.  It  was 
decided  that  neither  taxable  costs  nor  counsel  fees  could  be  recovered. 
We  think,  however,  that  the  whole  course  of  reasoning  is  in  conform- 
ity with  the  views  which  we  adopt.  At  the  time  the  cause  of  action 
accrued  (1832),  and  when  the  judgment  was  entered  (1839),  if  dam- 
ages were  recovered  for  injury  sustained  because  of  a  defect  in  a  v  iv. 
which  had  existed  for  the  space  of  twenty-four  hours,  and  after  the 
town  had  had  reasonable  notice  of  the  defect,  it  was  the  duty  of  the 
court  to  enter  judgment  against  the  defendant  for  double  the  amount 
of  the  sum  returned  as  damages  by  the  jury  (St.  1786,  c.  81,  §  7  : 
Kev.  Sts.  c.  25,  §  22).  The  court  says  in  the  opinion  :  "The  ground 
of  defense  taken  by  the  town  in  the  former  action  is  well  remembered, 
although  it  does  not  appear  in  the  present  report."  That  defense  is 
thus  stated  :  "  The  ground  of  defense  in  that  action  on  the  part  of  the 
town  was,  that  they  had  no  sufficient  notice  of  the  defect  in  the  road, 
and  that  the  remedy  for  the  injured  party  was  against  the  present  de- 
fendants.    The  suit  therefore  was  not  defended  at  the  request  of  the 


75G  COSTS   AND   COUNSEL   FEES. 

defendants  or  for  their  benefit ;  at  least,  no  such  request  has  been 
proved."  And  the  court  adds  :  "  If  the  claim  of  the  injured  parties 
had  been  made  on  the  defendants,  or  if  they  had  had  notice  that  the 
town  defended  the  suit  against  them  in  behalf  of  the  defendants,  they 
might  have  compromised  the  claim."  The  exact  point  of  the  decision 
in  this  respect  was  that  the  town  was  defending,  to  a  great  extent, 
against  its  own  obligation,  for  which  the  defendants  were  not  respon- 
sible either  to  them  or  to  the  injured  party.  It  was  the  special  par- 
ticular legal  obligation  of  the  defendants  themselves,  which  they  de- 
fended against,  and  not  simply  the  act  of  the  defendants.  The  lan- 
guage of  the  court  immediately  preceding  the  question  of  liability  for 
costs  is :  "  They  are  not,  however,  entitled  to  a  full  indemnity,  but 
only  to  the  extent  of  single  damages.  To  this  extent  only  were  the 
defendants  liable  to  the  parties  injured,  and  so  far  as  the  plaintiffs 
have  been  held  beyond  that  extent,  they  have  suffered  from  their  own 
neglect;  and  whether  it  was  actual  or  constructive  is  immaterial.  The 
damages  were  doubled  by  reason  of  the  neglect  of  the  town  ;  and  al- 
though there  was,  in  fact,  no  actual  negligence,  yet  constructive  neg- 
ligence was  sufficient  to  maintain  the  action  against  them  ;  and  they 
must  be  responsible  for  the  increased  amount  of  damages,  and  cannot 
throw  the  burden  on  the  defendants." 

Throughout  the  whole  reasoning  of  that  case,  we  think  the  prin- 
ciple which  we  adopt,  though  not  stated  in  terms,  is  clearly  recognized. 
It  is  simply  this  :  If  a  party  is  obliged  to  defend  against  the  act  of 
another,  against  whom  he  has  a  remedy  over,  and  defends  solely  and 
exclusively  the  act  of  such  other  party,  and  is  compelled  to  defend  no 
misfeasance  of  his  own,  he  may  notify  such  party  of  the  pendency  of 
the  suit  and  may  call  upon  him  to  defend  it ;  if  he  fails  to  defend, 
then,  if  liable  over,  he  is  liable  not  only  for  the  amount  of  damages 
recovered,  but  for  all  reasonable  and  necessary  expenses  incurred  in 
such  defense.  And  this  rule,  while  consistent  with  legal  principles, 
is  sanctioned  by  the  highest  equitable  considerations.  If  the  party 
ultimately  liable  for  his  exclusive  wrong-doing  has  notice  that  an  in- 
termediate party  is  sued  for  the  wrong  done  by  him,  it  is  right,  le- 
gally and  equitably,  that  he  take  upon  himself  at  once  the  defense  of 
his  own  act,  thereby  settling  the  whole  matter  in  a  single  suit ;  if  he 
requires  the  intermediate  party  to  defend,  there  is  no  rule  of  law  or 
of  morals  which  should  relieve  him  from  the  consequences  of  his  addi- 
tional neglect  of  duty.  Upon  the  whole,  therefore,  we  are  entirely 
satisfied  that  the  exceptions  must  be  overruled  and  judgment  entered 
for  the  plaintiff  for  the  larger  sum,  which  includes  what,  it  is  agreed, 
are  reasonable  counsel  fees. 

Exceptions  overruled. 


SHERMAN   v.    RAWSON.  757 

BREACH   OF   PROMISE. 

Seduction  ;  Breach  of  Promise  ;  Aggravation. 


SUPREME   JUDICAL    COURT,    MASSACHUSETTS. 

[1869.]  Sherman  v.  Eawson  (102  Mass.  395). 

Jn  an  action  by  a  woman  for  breach  of  a  promise  of  marriage,  the  jury,  in  estimating 
damages,  may  take  into  account  the  fact  of  her  seduction  by  the  defendant,  as  tend- 
ing to  increase  the  mortification  and  distress  suffered  by  her. 

Contract  for  breach  of  a  promise  of  marriage.  The  defendant 
denied  the  promise.  At  the  trial  in  the  Superior  Court,  before 
Devens,  J.,  it  appeared  that  there  had  been  sexual  intercourse  be- 
tween the  plaintiff  and  defendant,  and  the  plaintiff  had  been  deliv- 
ered of  a  child.  The  plaintiff  contended  that  this  intercourse  was 
procured  by  her  seduction  by  the  defendant,  but  the  defendant  con- 
tended that  it  was  without  solicitation  on  his  part. 

Upon  the  question  of  damages,  the  defendant  asked  the  judge  to 
give  the  jury  several  instructions,  of  which  the  first  and  fifth  were 
as  follows : 

"  1.  If  the  jury  believe  that  the  defendant  seduced  the  plaintiff 
under  a  promise  of  marriage,  still  that  fact  cannot  in  any  event  ag- 
gravate the  damages.  She  cannot  recover  damages  for  any  mortifi- 
cation and  pain  or  distress  of  mind,  except  such  as  resulted  solely 
from  the  defendant's  refusing  to  keep  his  promise  ;  and  the  fact  that 
she  had  been  seduced  by  him  is  not  an  element  of  damages,  directly 
or  indirect!}',  and  in  estimating  what  amount  the  plaintiff  should  re- 
cover, the  jury  are  to  dismiss  that  consideration  from  their  minds. 
If,  therefore,  the  jury  should  believe  that  the  plaintiff  was  so  se- 
duced, and  that  her  mortification  and  distress  of  mind  were  increased 
by  reason  of  that  fact,  still  they  must  exclude  it  from  their  compu- 
tation of  damages." 

"5th.  If  the  defendant  promised  to  marry  the  plaintiff  and  re- 
fused to  fulfil  his  promise,  whatever  mortification  and  pain  or  dis- 
tress of  mind  the  plaintiff  has  suffered,  resulting  from  her  own 
criminal  conduct,  cannot  properly  be  taken  into  the  account  in  com- 
puting damages." 

The  judge  instructed  the  jury  substantially  as  requested,  except 


758  BREACH   OF  PROMISE. 

as  to  the  matters  embraced  in  these  two  prayers  for  instructions  ; 
and  as  to  these  he  instructed  them  that  in  estimating  damages  "  they 
might  further  consider  the  mortification  and  distress  of  mind  which 
she  had  sustained  in  other  respects  than  by  the  injury  to  her  affec- 
tions by  the  breach  of  his  promise  to  marry  her ;  that  in  this  case 
the  plaintiff  claimed  to  have  proved  that,  }Tielding  to  the  solicitations 
of  the  defendant,  she  had  been  seduced  by  him  under  his  promise  of 
marriage,  and  induced  to  have  sexual  intercourse  with  him,  the  re- 
sult of  which  had  been  the  birth  of  a  child,  still  living  ;  that,  if  these 
facts  stated  had  been  proved,  they  might  consider  them  in  awarding 
damages  for  the  mortification  and  distress  suffered  by  the  plaint- 
iff ;  and  that  they  would  have  the  legitimate  tendency  to  increase 
them." 

The  verdict  was  for  the  plaintiff ;  and  the  defendant  alleged  ex- 
ceptions. 

Colt,  J. — The  defendant's  prayers  for  instructions  were  all  given 
substantially  as  asked  for,  except  the  first  and  fifth.  In  these  the 
court  was  further  asked  to  rule,  in  substance,  that  the  alleged  seduc- 
tion could  not  in  any  event  aggravate  the  damages  ;  that  it  was  not 
an  element  directly  or  indirectly  to  be  considered  by  the  jury  in  es- 
timating what  amount  the  plaintiff  should  recover,  although  her 
mortification  and  distress  of  mind  had  been  thereby  increased ;  and 
that  whatever  mortification  she  had  suffered  from  her  own  criminal 
conduct  could  not  be  taken  into  account.  These  rulings  were  prop- 
erly refused. 

It  may  be  true  that  damages  for  the  seduction,  as  a  distinct 
ground  of  action,  cannot  be  added  to  the  damages  which  the 
plaintiff  is  entitled  to  recover  for  a  breach  of  the  alleged  prom- 
ise to  marry.  It  would  be  an  indirect  mode  by  which  the  plaint- 
iff could  recover  damages  for  an  act  which  cannot  be  the  founda- 
tion of  an  action  in  favor  of  the  party  seduced,  because  the  policy 
of  the  law  forbids  satisfaction,  to  a  partner  in  the  crime,  for  a  sup- 
posed injury  to  which  she  was  consenting. 

But  it  does  not  follow  that  the  fact  of  the  seduction  is  not  to  be 
taken  into  consideration  at  all  by  the  jury.  The  action  is  nominally 
for  a  breach  of  contract,  but  the  measure  of  damages  is  fixed  by 
rules  not  precisely  like  those  which  apply  to  ordinary  contracts 
where  injury  to  the  person  is  not  involved.  They  are  awarded  upon 
principles  more  commonly  applicable  in  actions  of  tort.  The  plaint- 
iff is  entitled  to  compensation,  but  that  term  implies  indemnity  for 
all  that  she  has  suffered  by  the  defendant's  bad  faith.  It  includes 
injury  to  her  affections  and  wounded  pride.     It  involves  necessarily 


SHERMAN   v.   RAWSON.  759 

a  consideration  of  all  tlie  circumstances  of  the  plaintiff's  actual  situa- 
tion at  the  time  of  the  breach  of  the  promise.  If,  by  reason  of  an 
imprudent  or  criminal  act,  in  which  both  participated,  she  is  brought 
to  such  a  state  that  the  suffering  occasioned  to  her  feelings  and  af- 
fections must  necessarily  be  increased  by  his  abandonment,  then  that 
would  be  but  an  inadequate  and  poor  compensation  which  did  not 
take  it  into  account.  Damages,  it  is  true,  must  be  awarded  solely 
for  the  suffering  which  results  from  the  defendant's  refusal  to  per- 
form his  promise.  But  under  this  rule  even  they  cannot  be  justly 
estimated  without  regarding  the  increased  exposure  to  mortification 
and  distress,  to  which  she  has  been  left  by  a  seduction  under  promise 
of  marriage  afterwards  broken. 

We  understand  this  to  have  long  been  the  law  of  this  common- 
wealth. The  remark  of  Parsons,  Ch.  J.,  in  Paul  v.  Frazier  (3  Mass. 
71,  72),  in  reference  to  the  damages  to  be  awarded  in  these  cases, 
seems  to  go  further.  The  defendant  cannot  be  heard  to  plead,  in 
reduction  of  damages,  that  the  injury  was  more  aggravated  than  it 
would  have  been  if  his  own  improper  advances  had  been  resisted 
(Littlehale  v.  Dix,  11  Cush.  364).  The  current  of  American  author- 
ity, if  we  except  the  decisions  of  Pennsylvania  and  Kentucky,  is  all 
consistent  with  the  law  here  stated.  The  last  decision  in  Pennsyl- 
vania, while  it  follows  Weaver  v.  Bachert  (2  Penn.  St.  80),  in  the 
doctrine  that  seduction  cannot  be  given  in  evidence,  still  states  the 
rule  that  all  the  circumstances  attending  the  breach,  before,  at  the 
time,  and  after,  may  be  given  in  evidence  in  aggravation  of  dam- 
ages (Baldy  v.  Stratton,  11  Penn.  St.  316  ;  Wells  v.  Padgett,  8  Barb. 
323;  Tubbs  v.  Yan  Kleek,  12  111.  446;  Kniffen  v.  McConnell.  30 
K  Y.  2S5). 

The  instructions  of  the  learned  judge  upon  these  points  were 
accurately  given  in  view  of  the  distinctions  stated.  The  jury  were 
told  that  the  plaintiff  was  entitled  to  such  damages  as  she  was  proved 
to  have  incurred  by  the  breach  of  the  defendant's  promise  ;  that  they 
might  consider  the  mortification  and  distress  of  mind  which  she  had 
sustained  in  other  respects  than  by  the  injury  to  her  affections  ;  that, 
if  she  had  been  seduced  by  him,  they  might  consider  it,  in  awarding 
damages  for  the  mortification  and  distress  Buffered  ;  and  that  it 
would  have  a  legitimate  tendency  to  increase  them. 
*  *  *  *  #  #  •::•  *  * 

Exceptions  overruled. 


760  BREACH   OF   PROMISE. 


Breach    of    Promise  ;    Pecuniary  Circumstances  of  Defendant  ; 

Mitigation  ;  Aggravation. 


COURT  OF  APPEALS,  NEW  YORK. 

[1864.]  Kniffen  v.  McConnell  (30  K  Y.  285). 

In  an  action  for  breach  of  promise  of  marriage,  evidence  as  to  the  defendant's  pecuniary 
circumstances  should  be  confined  to  general  reputation.  To  that  extent  it  is  admis- 
sible. 

Where  the  answer,  in  such  an  action,  contains  only  a  denial  of  the  promise,  evidence 
showing  acts  of  improper  and  lewd  conduct  on  the  part  of  the  plaintiff,  for  the  pur- 
pose of  proving  criminal  intercourse  with  other  men,  after  the  making  of  the  promise, 
is  not  admissible,  as  a  bar  to  the  action,  for  the  reason  that  that  defense  is  not  set  up 
in  the  answer. 

Such  evidence  may  be  received,  however,  in  mitigation  of  damages,  it  seems, 

It  is  not  erroneous  for  the  judge  to  charge  the  jury  that  if  they  find  the  defendant  seduced 
the  plaintiff  under  a  promise  of  marriage,  it  aggravates  the  damages. 

It  is  not  erroneous  to  charge  that  if  the  defendant  has  come  into  court  and  attempted  to 
prove  the  plaintiff  guilty  of  misconduct  with  other  men,  of  which  he  knew  she  was 
innocent,  or  when  the  misconduct  was  committed  with  himself,  it  aggravates  the  in- 
jury and  strengthens  the  claim  to  damages,  although  such  misconduct  is  not  set  up 
in  the  answer  as  a  defense. 

This  was  an  action  to  recover  damages  for  breach  of  a  promise  of 
marriage.  The  complaint  contained  a  promise  of  marriage,  made  by 
the  defendant  to  the  plaintiff,  to  many  her  when  he  should  be  there- 
after requested  ;  averring  a  request  to  many  and  the  defendant's  re- 
fusal. It  also  contained  a  second  allegation  on  a  promise  to  many 
the  plaintiff:  within  a  reasonable  time,  a  request  by  the  plaintiff  and  a 
refusal  to  marry  her,  although  a  reasonable  time  had  elapsed.  The 
answer  was  a  general  denial  of  everything  in  the  complaint. 

Upon  the  trial,  it  appeared  the  defendant  commenced  paying  at- 
tentions to  the  plaintiff  in  1852,  and  continued  his  attentions  till 
Sept.,  1855.  During  that  time  he  went  with  the  plaintiff  to  parties, 
balls,  and  elsewhere ;  would  spend  his  evenings  with  her,  ride  out  on 
Sundays,  and  on  his  return  stay  till  midnight.  On  one  occasion, 
when  the  plaintiff  was  sick,  the  defendant  visited  her  two  or  three 
times  a  week,  and  would  fan  her,  staying  from  half  an  hour  to  two 
or  three  hours.  On  one  occasion,  when  visiting  her,  he  was  told  by 
a  relative  of  the  plaintiff  they  were  old  enough  to  get  married,  or  to 
break  up  keeping  company.  To  which  he  replied,  he  was  not  fool- 
ino-  about  the  matter.     In  April,  1855,  on  a  visit  he  made  to  the 


KNIFFEN  v.   McCONNELL.  761 

plaintiff,  the  defendant  was  charged  by  her  aunt  with  causing  her 
condition — she  being  then  pregnant — and  asked  what  he  was  going 
to  do  about  the  matter.  He  denied  being  the  father  of  the  child. 
The  plaintiff  said  no  other  man  had  ever  had  connection  with  her. 
He  was  asked  to  marry  her.  He  replied,  he  was  not  in  a  condition 
to  marry  then.  He  afterwards  said  she  had  proved  herself  to  be 
treacherous,  and  he  could  not  marry  her.  The  plaintiff  was  about 
twenty-six  years  of  age  and  the  defendant  forty.  It  was  proved  she 
had  invited  other  young  men  in  her  room,  and  had  gone  to  parties 
with  them.  Other  evidence  was  given  as  to  their  riding  together  ; 
and  a  sister  of  the  plaintiff  proved  that  the  defendant  told  her  they 
were  engaged. 

Upon  the  trial,  the  judge  permitted  the  plaintiff  to  prove  what 
the  defendant  was  worth.  This  was  objected  to  by  the  defendant, 
and  the  objection  overruled  upon  the  ground  that  the  evidence  was 
admissible  to  show  the  extent  of  the  damage  the  plaintiff  had  sus- 
tained by  the  defendant's  refusal  to  marry  her.  To  this  the  defend- 
ant excepted. 

When  the  plaintiff  rested,  the  defendant's  counsel  moved  for  a 
dismissal  of  the  complaint,  on  the  ground  that  there  was  no  evidence 
of  a  sufficient  request  to  marry  on  the  part  of  the  plaintiff.  The  mo- 
tion was  denied,  and  the  defendant  excepted. 

The  defendant  offered  to  prove  that  the  plaintiff  was  on  one  occa- 
sion in  a  private  bedroom  with  some  young  men,  and  they  shut  them- 
selves in  and  remained  for  some  time ;  and  also  acts  of  a  lascivious 
character,  showing  that  she  had  prostituted  her  person  to  others,  after 
the  alleged  promise  of  marriage.  This  was  excluded,  on  the  ground 
that  no  such  defense  was  set  up  in  the  answer ;  to  which  the  defend- 
ant excepted.  The  same  evidence  was  afterwards  offered  and  admit- 
ted in  mitigation  of  damages.  It  was  proved  that,  in  September, 
1855,  the  plaintiff  spent  the  night  at  a  tavern  with  a  young  man 
other  than  the  defendant,  and  that  they  lodged  together  ;  and  a  simi- 
lar occurrence  in  July  or  August,  1854.  Some  evidence  was  given  to 
impeach  the  testimony  of  these  witnesses. 

The  judge,  among  other  things,  charged  the  jury  that  if  they 
found  the  defendant  had  seduced  the  plaintiff,  under  a  promise  of 
marriage,  it  aggravated  the  injury,  and  they  might  regard  such  seduc- 
tion as  an  aggravation  of  damages.  That  if  the  defendant  had  at- 
tempted to  prove  her  guilty  of  misconduct  with  other  men,  of  which 
he  knew  she  was  not  guilty,  or  when  the  misconduct  was  committed 
by  himself,  it  aggravated  the  damages. 

To  these  various  points  of  the  charge,  and  to  the  refusal  to  charge 


'762  BREACH   OF  PROMISE. 

the  defendant  duly  excepted.  The  jury  found  a  verdict  in  favor  of 
the  plaintiff  for  the  sum  of  $2,350,  and  the  plaintiff  remitted  to  the 
defendant  the  sum  of  $350,  and  prayed  judgment  for  the  residue  of 
the  verdict  and  damages,  being  the  sum  of  $2,000  demanded  in  the 
complaint ;  and  for  the  latter  sum,  with  costs,  judgment  was  entered. 
The  general  term  affirmed  an  order  of  the  special  term  denying  a 
motion  for  a  new  trial,  and  judgment  was  entered  on  the  verdict,  for 
the  plaintiff. 

Ingeaham,  J. — There  was  sufficient  evidence  of  a  request  on  the 
part  of  the  plaintiff  to  marry,  to  warrant  the  denial  of  the  motion  to 
dismiss  the  complaint.  The  uncle  and  aunt,  in  her  presence,  and 
without  objection  on  her  part,  asked  the  defendant  to  marry  her  on 
account  of  her  condition,  which  he  refused  ;  and  when  the  plaintiff 
said  to  him,  "  McConnell,  I  don't  want  your  money ;  I  want  your 
word  and  honor  that  you  promised  me  ;  "  he  replied,  "  There  is  no 
use  in  talking,  I  can't  marry  you  now,"  there  was  evidence  enough  on 
the  subject  of  a  request  to  submit  that  question  to  the  jury. 

The  defendant  objected  to  evidence  as  to  his  pecuniary  circum- 
stances. The  ground  upon  which  this  was  admitted  was  to  show  the 
full  extent  of  the  loss  or  damage  the  plaintiff  had  sustained  by  reason 
of  the  defendant's  refusing  to  fulfill  his  engagement.  By  this,  I 
suppose,  it  was  intended  to  show  that,  from  the  plaintiff's  pecuniary 
condition,  she  would  have  been  in  the  enjoyment  of  comfortable  cir- 
cumstances, and  placed  in  the  use  of  means  which,  by  his  refusal,  she 
lias  been  deprived  of.  It  is  now  settled  that,  in  action  for  breach  of 
contract,  evidence  of  the  condition  of  the  defendant  as  to  means  is 
not  admissible.  And  in  other  actions,  a  similar  ruling  has  been 
adopted,  when  the  evidence  was  offered  to  increase  the  damages. 
Thus,  in  Myers  v.  Mai  com  (6  Hill,  292),  this  evidence  was  held  im- 
proper in  an  action  for  damages,  from  an  explosion  of  gunpowder 
improperly  stored.  And  in  Daiii  v.  Wycoff  (3  Selden,  191),  Gaedi- 
neb,  J.,  in  an  action  for  damages  for  seduction,  says:  "If  the  defend- 
ant cannot  show  his  poverty  in  mitigation  of  damages,  there  is  no 
reason  why  the  plaintiff  should  aggravate  them  by  proof  of  his 
wealth."  In  James  v.  Biddington  (6  Car.  &  P.  589),  such  evidence 
was  held  inadmissible  in  actions  for  criminal  conversation.  But,  in 
the  latter  case,  it  is  said  this  rule  does  not  apply  in  action  for  breach 
of  promise  of  marriage,  where  the  amount  of  the  defendant's  prop- 
erty is  material  as  going  to  show  what  should  have  been  the  station  of 
the  plaintiff  in  society  if  the  promise  had  not  been  broken  (Sedg.  on 
Dam.  p.  541:).  His  means  might  have  relieved  her  from  labor,  or 
placed  her  in  a  condition  of  comfort  and  independence  which  she 


KNIFFEN  v.   McCONNELL.  763 

would  not  have  otherwise  enjoyed.  The  objection  in  this  case  was 
not  to  the  mode  of  proof,  but  to  the  admissibility  of  that  kind  of 
evidence.  It  may  be  objectionable  to  particularize  the  defendant's 
property,  and  such  evidence  should  be  confined  to  general  reputation 
as  to  the  circumstances  of  the  defendant.  To  that  extent  I  think  it 
admissible. 

The  defendant  offered  evidence  showing  acts  of  improper  and 
lewd  conduct  on  the  part  of  the  nlaintiff,  for  the  purpose  of  proving 
criminal  intercourse  with  other  men.  This  was  excluded  by  the  court, 
for  the  reason  that  the  same  was  not  set  up  in  the  answer.  There  was 
no  error  in  this  ruling.  The  alleged  improprieties  had  taken  place 
after  the  promise  of  marriage  had  been  made.  They  did  not  show 
the  contract  to  be  void  from  the  commencement,  but  they  showed 
acts  which  relieved  the  defendant  from  an  obligation  of  performance, 
and  which  constituted  a  defense  to  the  original  cause  of  action.  The 
Code,  section  149,  requires  an  answer  to  contain  either:  1.  Denials 
of  the  plaintiff's  allegations ;  or,  2.  A  statement  of  any  new  matter 
constituting  a  defense  or  counter-claim.  The  wording  of  this  section 
is  imperative.  The  answer  must  contain  such  statements.  In  this 
case  the  answer  only  contained  a  denial  of  the  promise.  It  gave  no 
information  of  any  new  defense,  or  any  new  matter  occurring  after 
the  contract,  that  formed  a  defense.  No  issue  was  formed  as  to  such 
a  defense.  In  McKyring  v.  Bull  (16  K  Y.  297),  the  effect  of  this 
section  was  held  to  be  such  as  to  require  all  matter,  if  it  constituted 
a  defense,  to  be  pleaded.  (See  also  "Wright  v.  Delafield,  25  N.  Y.  It. 
270).  While,  however,  this  was  not  admissible  as  a  bar  to  the  action, 
the  defendant  offered,  and  the  court  received  it  in  mitigation  of  dam- 
ages, and  the  defendant  received  the  full  benefit  of  it,  as  much  as  he 
Avould  have  done  if  received  on  the  first  offer.  In  addition  to  the 
admission,  the  judge  gave  the  defendant  the  full  benefit  of  the  evi- 
dence as  a  defense,  when  he  told  the  jury,  if  the  defendant  was  not 
the  father  of  the  plaintiff's  child,  or  had  any  reasonable  ground  so  to 
believe,  at  the  time  of  his  refusal  to  marry  her,  they  should  find  fur 
the  defendant. 

The  judge  also  charged  that,  if  they  found  the  defendant  had  se- 
duced the  plaintiff,  under  a  promise  of  marriage,  it  aggravated  the 
damages.  I  do  not  understand  the  objection  to  this  ruling  to  be  to 
its  correctness  as  a  rule  of  law,  but  that  it  was  not  warranted  by  the 
evidence;  and  that  the  judge  submitted  to  the  jury  a  proposition  not 
sustained  by  the  evidence,  and  not  in  the  case.  The  propriety  of  the 
rule  was  fully  examined  by  Mason,  J.,  in  Wells  v.  Padgett  (8  Barb. 
323),  and  cases  cited  by  him  from  Massachusetts.  Mississippi,  Tennes- 


'764  BREACH   OF   PROMISE. 

see,  Kentucky,  and  Indiana,  approving  that  rule.  The  only  case  cited 
to  the  contrary  is  from  Pennsylvania,  but  the  propriety  of  that  de- 
cision has  been  since  questioned.  The  weight  of  authority  and  the 
general  principles  upon  which  such  evidence  has  been  admitted,  are 
strongly  in  favor  of  sustaining  the  rule. 

Was  there  then  evidence  enough  in  the  case  to  warrant  the  find- 
ing of  the  jury  on  that  point.  There  was  proved  :  1st.  The  promise 
as  admitted  by  the  defendant  in  his  acts  and  conversation.  2d.  The 
pregnancy  of  the  plaintiff,  and  subsequent  birth  of  the  child.  3d- 
The  application  to  him  to  marry  the  plaintiff,  on  account  of  her  con- 
dition, and  his  refusal.  4th.  The  appeal  of  the  plaintiff  to  him  that 
she  did  not  want  his  money,  but  wanted  his  word  and  honor  that  he 
had  promised  her.  These  and  other  portions  of  evidence  bearing 
upon  this  question  were  amply  sufficient  to  submit  to  the  jury  the 
question  whether  he  had  seduced  the  girl,  and,  if  so,  whether  he  had 
promised  marriage  to  carry  out  his  intentions,  or  had  taken  advantage 
of  the  confidence  arising  from  that  promise  to  effect  that  purpose. 
There  is  no  room  for  the  objection  that  there  was  not  enough  evidence 
on  which  that  question  could  be  submitted  to  the  jury. 

The  judge  also  charged  that  "  if  the  defendant  had  come  into 
court  and  attempted  to  prove  her  guilty  of  misconduct  with  other 
men,  of  which  he  knew  she  was  not  guilty,  or  when  the  misconduct 
was  committed  with  himself,  it  aggravates  the  injury,  and  aggravates 
the  claim  to  damages."  In  Southard  v.  Rexford  (6  Cowen,  254),  it 
was  held  that  an  attempt  to  justify  the  breach  of  promise  of  marriage 
by  stating  upon  the  record,  as  the  cause  of  desertion  of  the  plaintiff, 
that  she  had  repeatedly  had  criminal  intercourse  with  various  persons, 
and  fails  entirely  in  proving  it,  is  a  circumstance  which  ought  to  aggra- 
vate damages.  The  reason  given  by  the  learned  judge  in  that  case  is 
that  a  verdict  for  nominal  damages,  under  such  circumstances,  would 
be  fatal  to  the  plaintiff.  The  rule  is  undoubtedly  founded  upon  the 
fact  that  the  justification  is  placed  upon  the  record,  and  that  it  will 
ever  remain  there  as  a  reiteration  of  the  charge  against  the  plaintiff, 
and  with  such  an  answer  on  the  record,  a  trifling  verdict  would  not 
show  that  such  charge  was  unfounded.  The  same  rule  applies  to  ac- 
tions for  libel  and  slander ;  but  I  have  not  seen  any  case  where  the 
rule  has  been  extended  beyond  a  justification  upon  the  record.  The 
defendant  certainly  did  prove  improprieties  on  the  part  of  the  plaint- 
iff, after  the  promise  was  made,  not  perhaps  as  to  the  prostitution, 
for  those  witnesses  were  discredited,  to  some  extent,  and  may  have 
been  disbelieved  by  the  jury.  The  attempt  to  submit  such  conduct 
to  the  jury,  when  the  same  is  not  made  a  part  of  the  record,  does  not, 


KNIFFEN  v.   McCOMNELL.  765 

iii  my  judgment,  warrant  the  charge  of  the  judge  in  the  present  case. 
Such  a  rule  would  deprive  a  party  of  a  right  to  submit  anything  in 
mitigation  of  damages,  as  connected  with  the  plaintiff's  conduct,  with- 
out assuming  the  liability  of  having  the  damages  increased  if  he  fails 
in  establishing  the  truth  of  them. 

It  is  an  anomaly  in  an  action  for  a  breach  of  contract,  to  hold  that 
setting  up  matters  to  excuse  such  breach,  in  an  answer,'  the  proof  of 
which  fails,  is  an  aggravation  of  damages.  Certainly  the  rule  should 
be  extended  no  further  than  the  case  of  Southard  v.  Rexford  has  car- 
ried it ;  and  where  it  is  not  made  a  part  of  the  record,  and  set  up  by 
way  of  justification,  there  is  no  good  reason  for  the  rale  as  laid  down 
upon  the  trial.  It  has  been  held  that  to  prove  the  bad  character  of 
the  plaintiff  in  such  an  action,  the  representations  of  character  made 
by  third  persons  may  be  given  in  evidence  without  proving  their 
truth  (Foulkes  v.  Solway,  3  Esp.  Rep.  236).  If  the  rule,  as  laid  down 
at  the  circuit,  be  correct,  then  such  proof  would  only  be  an  aggrava- 
tion of  the  damages.  I  think  there  was  error  in  this  part  of  the 
charge,  and  that  the  rule  should  have  been  confined  to  the  justification 
set  up  on  the  record. 

For  the  cause  above  stated  as  to  the  charge  that  the  attempt  to 
prove  facts  imputing  want  of  chastity  to  the  plaintiff,  which  failed, 
was  an  aggravation,  I  think  a  new  trial  should  be  ordered ;  but  a 
majority  of  the  court  are  of  the  opinion  that  the  charge  was  not  erro- 
neous in  this  respect ;  and  that  attempting  to  give  such  matters  in 
evidence,  though  not  set  up  in  the  answer  as  a  defense,  if  not  made 
out,  warrants  the  charge  to  the  jury  that  it  should  aggravate  the 
damages. 

The  judgment,  therefore,  must  be  affirmed. 

Mullin,  J.,  concurred  with  Ingraham,  J.,  upon  the  last  point.  All 
the  other  judges  being  for  affirmance,  judgment  affirmed. 

Note.— See  Sauer  v.  Schulenberg,  33  Md.  288,  and  Sheahan  v.  Barry.  27  Mich. 
217,  to  the  same  effect. 


766  BREACH   OF   PROMISE. 


Breach  of  Promise;  Aggravation  by  Failure  to  Prove  Justi- 
fication Alleged. 


COURT  OF  APPEALS,  NEW  YORK. 

[1870.]  Thorn  v.  Knapp  (42  N.  Y.  474). 

Actions  for  breach  of  promise  to  marry  are,  as  to  the  measure  of  damages,  classed  with 
actions  for  torts,  and  the  motives  of  the  defendant  ma}^  be  inquired  into  with  the 
view  of  furnishing  ground  for  punitive  damages.  So  the  defendant  may  prove,  in 
mitigation  of  damages,  any  facts  tending  to  show  that  he  was  actuated  by  proper 
motives,  and  that  his  conduct  was  neither  cruel  nor  malicious. 

But  if,  in  such  an  action,  defendant  allege  in  justification,  the  plaintiff's  unchastity,  and 
fail  at  the  trial  to  prove  it,  the  jury  may  take  into  consideration  such  allegation  in 
aggravation  of  damages. 

Appeal  from  a  judgment  of  the  general  term  of  the  Supreme 
Court  in  the  second  judicial  district,  affirming  a  judgment  entered 
on  a  verdict  for  the  plaintiff,  for  $4,000. 

Action  for  damages  for  breach  of  contract  to  marry. 

Defense,  the  plaintiff's  unchastity. 

On  the  trial,  there  being  no  proof  to  sustain  the  allegations  of 
defense,  the  court  charged  the  jury  that :  "  Where  a  defendant  in 
his  answer,  as  in  this  case,  attempts  to  justify  his  breach  of  promise 
of  marriage  by  stating  therein,  and  thus  placing  upon  the  record,  as 
the  cause  of  his  desertion  of  the  plaintiff,  that  she  has  had  criminal 
intercourse  with  various  persons,  and  fails  to  prove  it,  the  jury  have 
a  right  to  take  this  circumstance  into  consideration  in  aggravation  of 
the  damages  to  which  the  plaintiff  may  be  entitled." 

To  this  charge  the  defendant  excepted. 

Earl,  Ch.  J. — The  defendant,  in  his  answer,  alleged  that,  at  the 
time  of  the  alleged  promise  of  marriage,  "  the  plaintiff'  was  a  com- 
mon prostitute,  and  still  is  so,  and  was  then,  and  still  is  of  a  bad 
character,  and  was,  and  is  an  unchaste  woman,  and  had,  and  has  illicit 
intercourse  with  various  persons."  On  the  trial,  the  defendant  did 
not  attempt  to  prove  any  of  these  allegations  ;  and  the  court,  in  the 
charge  to  the  jury,  among  other  things,  charged  as  follows  :  "Where 
a  defendant,  in  his  answer,  attempts  to  justify  his  breach  of  promise 
of  marriage  by  stating  therein,  and  thus  placing  upon  the  record,  as 
the  cause  of  his  desertion  of  the  plaintiff,  that  she  has  had  criminal 
intercourse  with  various  persons,  and  fails  to  prove  it,  the  jury  have 
a  right  to  take  this  circumstance  into  consideration,   in  aggravation 


THORN   v.   KNAPP.  767 

of  the  damages  to  which  the  plaintiff  may  be  entitled."  The  only 
question  we  are  called  upon  to  consider,  arises  upon  the  exception  to 
this  charge. 

In  Southard  v.  Rexford  (6  Cowen,  254),  the  action  was  for  breach 
of  promise  of  marriage.  The  defendant,  with  the  general  issue,  gave 
notice  that  he  would  prove  in  his  defense,  that  the  plaintiff  had,  at 
various  times,  and  with  various  persons,  specifying  them,  committed 
fornication  after  the  alleged  promise.  He  attempted,  at  the  trial,  to 
prove  this  branch  of  his  defense,  but  failed.  On  the  question  of 
damages,  the  judge  charged  :  "  That  in  cases  of  this  kind,  the  dam- 
ages are  always  in  the  discretion  of  the  jury ;  and  in  fixing  the 
amount,  they  have  a  right  to  take  into  consideration  the  nature  of 
the  defense  set  up  by  the  defendant ;  that  in  his  defense,  he  had  at- 
tempted to  excuse  his  abandonment  of  the  plaintiff,  on  the  ground 
that  she  was  unchaste  and  had  committed  fornication  with  different 
individuals.  But  it  appeared,  from  the  testimony  of  his  own  wit- 
nesses, that  her  character  in  that  respect  had  not  been  tarnished, 
even  by  the  breath  of  suspicion  ;  that  with  such  a  defense  on  the 
record,  a  verdict  for  nominal  or  trifling  damages  might  be  worse  for 
her  reputation  than  a  general  verdict  for  defendant ;  that,  if  the  de- 
fendant had  won  her  affections  and  promised  her  marriage,  and  had 
not  only  deserted  her  without  cause,  but  had  also  spread  this  defense 
upon  the  record,  for  the  purpose  of  destroying  her  character,  the 
jury  would  be  justified  in  giving  exemplary  damages."  The  plaint- 
iff recovered,  and  the  Supreme  Court  held  this  charge  to  be  correct. 
Judge  Sutherland,  writing  the  opinion  of  the  court,  says  :  "  Where 
the  defendant  attempts  to  justify  his  breach  of  promise  of  marriage, 
hj  stating  upon  the  record,  as  the  cause  of  his  desertion  of  the 
plaintiff,  that  she  had  repeatedly  had  criminal  intercourse  with  va- 
rious persons,  and  fails  entirely  in  proving  it,  this  is  a  circumstance 
which  ought  to  aggravate  the  damages.  A  verdict  for  nominal  or 
trifling  damages,  under  such  circumstances,  would  be  fatal  to  the 
character  of  the  plaintiff ;  and  it  would  be  matter  of  regret,  indeed, 
if  a  check  upon  a  license  of  this  description  did  not  exist,  in  the 
power  of  the  jury  to  take  it  into  consideration  in  aggravation  of 
damages."  This  case  was  decided  in  L826,  and,  so  far  as  I  can  dis- 
cover, has  never  been  questioned.  In  Parsons  on  Cont.,  551,  the 
author  says  :  "  If  the  defendant  has  undertaken  to  rest  his  defense, 
in  whole  or  in  part,  on  the  general  bad  character,  or  the  criminal 
conduct  of  the  plaintiff,  and  fail  altogether  in  the  proof,  it  has  been 
distinctly  held  that  the  jury  may  consider  this  in  aggravation  of 
damages,"  and  he  refers  to  the  case  of  Southard  v.  Rexford  as  his 
authority. 


768  BREACH   OF  PROMISE. 

The  case  of  Southard  v.  Rexford  is  also  cited  with  approval  by 
Judge  Ingraham  in  Kniffin  v.  McConnell  (30  K  Y.  285).  That  was 
an  action  to  recover  damages  for  breacli  of  promise  of  marriage. 
The  defendant,  under  a  general  denial,  offered,  in  mitigation  of 
damages,  and  was  allowed  to  give,  some  evidence  tending  to  show 
acts  of  improper  and  lewd  conduct  on  the  part  of  the  plaintiff,  for 
the  purpose  of  proving  criminal  intercourse  with  other  men.  The 
presiding  judge,  among  other  things,  charged  the  jury  that,  if  the 
defendant  had  attempted  to  prove  plaintiff  guilty  of  misconduct  with 
other  men,  of  which  he  knew  she  was  not  guilty,  it  aggravated  the 
damages.  Judge  Ingraham,  writing  the  opinion,  recognizes  and  ap- 
proves the  rule  laid  down  in  Southard  v.  Rexford.  But,  while  he 
holds  that  it  is  an  aggravation  of  the  damages  to  place  such  allega- 
tions upon  the  record,  he  reaches  the  conclusion  that  it  is  not  an  ag- 
gravation of  the  damages  to  offer  proof  of  such  allegations,  when 
they  are  not  spread  upon  the  record  in  the  answer.  A  majority  of 
the  court,  however,  differed  with  him,  and  held  that  it  was  an  aggra- 
vation of  the  damages  even  to  offer  and  attempt  the  proof  of  such 
allegations  in  mitigation  of  damages,  without  setting  them  up  in  the 
answer.  It  does  not  appear  that  any  member  of  the  court  departed 
from  the  doctrine  laid  down  in  Southard  v.  Rexford.  That  case 
must  be  regarded  as  an  affirmance  of  that  doctrine,  as  it  cannot  be 
perceived  how  the  offer  of  the  proof  can  be  any  more  an  aggravation 
of  the  damages  than  to  put  the  same  matter  deliberately  in  the 
answer,  forever  to  remain  among  the  records  of  the  court.  Hence, 
if  we  rested  entirely  upon  authority,  we  should  be  obliged  to  hold 
that  the  charge  was  right.  But  the  charge  can  also  be  sustained 
upon  principle  and  analogy.  The  general  rule  as  to  actions  upon 
contracts  is,  that  the  plaintiff  can  only  recover  a  compensation  for 
the  damages  he  has  sustained  by  the  breach  of  the  defendant,  and 
exemplary  or  punitory  damages  are  not  allowed.  To  this  rule  an 
action  for  breach  of  contract  of  marriage  is  an  exception,  and,  so  far 
as  I  can  now  call  to  mind,  the  only  exception.  As  to  the  measure 
of  damages,  this  action  has  always  been  classed  with  actions  of  torts ; 
as  libel,  slander,  seduction,  criminal  conversation,  &c.  (Wells  v.  Pad- 
gett, 8  Barb.  323 ;  Johnson  v.  Jenkins,  24  K  T.  252  ;  Sedgwick  on 
Damages,  368  ;  Burns  v.  Buck,  1  Lans.  268) ;  and  not  without  reason. 
It  is  the  policy  of  the  law  to  encourage  matrimony,  and  society  has 
an  interest  in  contracts  of  marriage  both  before  and  after  they  are 
consummated.  A  man  who  enters  into  a  contract  of  marriage  with 
improper  motives,  and  then  ruthlessly  and  unjustifiably  breaks  it  off, 
does  a  wrong  to  the  woman,  and  also,  in  a  more  remote  sense,  to  so- 


THORN   v.    KNAPP.  769 

ciety,  and  he  needs  to  be  punished  in  the  interest  of  society,  as  well 
as  the  man  who  commits  a  tort  under  circumstances  showing  a  bad 
heart.  The  rule  of  damages  applicable  to  ordinary  contracts  would 
be  wholly  inadequate.  So  much  depends  in  each  case  upon  the  cir- 
cumstances surrounding  it,  and  upon  the  conduct,  standing  and  char- 
acter of  the  parties.  In  all  cases  where  vindictive  damages  are 
allowed,  it  is  upon  the  theory  that  the  defendant's  conduct  has  been 
such  that  he  deserves  to  be  punished ;  and  with  the  view  of  measur- 
ing out  punishment  to  him,  as  well  as  compensation  to  the  plaintiff, 
it  is  always  competent  to  inquire  into  his  motives  and  intentions ;  to 
show  that  the  act  complained  of  was  done  wantonly,  insolently,  ma- 
liciously, or  with  a  bad  and  wicked  heart.  In  such  actions  it  is  not 
only  proper  to  show  the  main  transaction,  but  any  facts  bearing  upon 
or  relating  to  it,  showing  that  it  was  done  wantonly,  maliciously  and 
wickedly,  with  the  view  of  enhancing  the  damages.  It  is  upon  this 
theory,  that,  in  an  action  of  slander,  the  plaintiff  is  permitted  to 
prove  the  repetition  of  the  slanderous  words  subsequent  to  the  time 
alleged  in  the  complaint,  even  down  to  the  trial.  This  proof  is  al- 
lowed, not  to  sustain  the  action,  and  not  for  the  purpose  of  recover- 
ing damages  for  the  words  thus  repeated,  but  solely  for  the  purpose 
of  proving  the  malice  which  prompted  the  utterance  of  the  words 
counted  on,  and  thus  bearing  upon  the  damages  to  be  allowed  on 
account  of  them.  And  so  if,  instead  of  repeating  the  slanderous 
words  orally,  they  are  repeated  by  being  set  up  as  a  justification  or 
in  mitigation  in  the  answer,  and  thus  placed  upon  the  records  of  .the 
court,  and  the  defendant  fails  to  prove  them,  for  precisely  the  same 
reason  and  upon  the  same  theory,  the  damages  may  be  enhanced. 
So  in  an  action  for  breach  of  promise  of  marriage,  it  is  always  com- 
petent, for  the  purpose  of  enhancing  the  damages,  to  prove  the  mo- 
tives that  actuated  the  defendant ;  that  he  entered  into  the  contract 
and  broke  it  with  bad  motives  and  a  wicked  heart ;  and  it  is  compe- 
tent for  him  to  prove,  in  mitigation  of  damages,  that  his  motives 
were  not  bad,  and  that  his  conduct  was  neither  cruel  nor  malicious. 
In  the  case  of  Johnson  v.  Jenkins  (24  N.  Y.  252),  it  was  held  com- 
petent, in  mitigation  of  damages,  for  the  defendant  to  prove  that, 
when  asked  by  the  plaintiff  why  he  had  discontinued  his  visits  to 
her,  he  declared  that  his  affection  and  regard  for  her  were  undimin- 
ished, but  that  he  could  not  marry  her,  because  his  parents  were  so 
violently  opposed  to  the  match.  Judge  Allen,  writing  the  opinion 
of  the  court,  says  :  "  Every  circumstance  attending  the  breaking  off 
of  the  engagement  becomes  a  part  of  the  res  gestae.  The  reasons 
which  were  operative  and  influential  with  the  defendant  are  mate- 
49 


770  BREACH   OF   PROMISE. 

rial,  so  far  as  they  can  be  ascertained ;  and  whether  they  are  such  as, 
tending  to  show  a  willingness  to  trifle  with  the  contract  and  with 
the  rights  of  the  plaintiff,  should  enhance  the  damages,  or,  on  the 
contrary,  showing  a  motive  consistent  with  any  just  appreciation  of, 
and  regard  for  his  duties,  should  confine  the  damages  within  the 
limit  of  a  just  compensation,  will  always  be  for  the  jury  to  deter- 
mine." "  Had  the  defendant,  by  his  declarations,  shown  a  wicked 
mind  in  the  transaction,  it  is  evident  that  they  very  properly  would 
have  been  submitted  to  the  jury  further  to  enhance  the  damages." 
Suppose  he  had  told  the  plaintiff,  at  any  time  before  the  trial  of  the 
action,  that  he  had  discontinued  his  visits  and  broken  the  contract 
because  she  was  a  prostitute  ;  could  she  not,  upon  the  same  princi- 
ples, have  proved  this  in  enhancement  of  damages  ?  No  damages 
could  be  allowed  for  defaming  her  by  the  utterance  of  these  words  ; 
but  they  could  be  proved  as  showing  the  mind  with  which  the  con- 
tract was  broken,  and  as  thus  bearing  upon  the  damages  to  be  allowed 
for  that.  So  if  this  language,  instead  of  being  uttered  orally,  is 
placed  upon  the  record  in  the  answer,  for  the  same  reason  and  upon 
precisely  the  same  principle,  if  the  defendant  fails  to  prove  it  and  it 
thus  turns  out  to  be  untrue,  it  may  be  taken  into  consideration  by 
the  jury  in  aggravation  of  the  damages.  I  therefore  conclude,  upon 
principle  as  well  as  upon  authority,  that  the  charge  excepted  to  was 
free  from  error,  and  the  judgment  should  be  affirmed. 

E.  Darwin  Smith,  J. — The  verdict  of  the  jury  establishes  the 
making  and  breach  of  the  contract  of  marriage  ;  and,  there  being  no 
exception  to  the  charge  upon  the  merits,  we  must  assume  that  the 
same  was,  in  every  respect,  proper  and  satisfactory  to  the  parties, 
except  upon  the  single  point  relating  to  the  damages,  upon  which 
there  was  taken  a  specific  exception.  The  defendant  had,  in  his 
answer,  spread  upon  the  record  as  a  defense  to  the  action,  that  the 
plaintiff,  at  the  time  of  the  making  of  the  said  alleged  promise  of 
marriage  was,  and  still  was,  a  common  prostitute,  and  then,  and  still 
was  of  bad  character,  an  unchaste  woman,  and  had,  and  has  illicit 
intercourse  with  various  persons.  This  is  a  very  serious  and,  if  un- 
true and  unfounded,  a  most  wanton  and  wicked  charge.  And  yet, 
if  the  defendant  had  promised  to  marry  the  plaintiff,  and  was,  at  the 
time,  in  entire  ignorance  of  her  true  character,  it  was  a  defense 
to  the  action,  if  proved,  and  would  justify  his  refusal  to  perform 
his  contract  with  her ;  otherwise,  it  was  simply  a  matter  in  mitiga- 
tion of  damages. 

The  charge  appears  to  have  been  entirely  unproved  at  the  trial, 
and  it  does  not  distinctly  appear  whether  proof  of  it  was,  or  was  not 


THORN  v.   KNAPP.  771 

attempted  ;  but  the  defendant  would  clearly  have  been  entitled  to 
prove  it,  if  he  had  been  able  to  do  so.  In  the  absence  of  such  proof, 
therefore,  of  this  most  injurious  and  calumnious  charge,  made  upon 
the  record  against  this  plaintiff,  the  question  for  the  decision  of  this 
court  is,  whether  the  jury  were  entitled  to  consider  the  fact  that 
such  charge  had  been  made,  and  thus  spread  upon  the  record,  and 
whether  the  judge  might  properly  suggest  to  them  that  they  had  a 
right  to  take  this  circumstance  into  consideration,  in  aggravation  of 
the  damages  to  which  the  plaintiff  was  entitled.  The  case  of  South- 
ard v.  Rexford  (6  Cow.  254),  is  an  express  authority  in  favor  of  the 
correctness  of  the  charge  made  by  the  learned  circuit  judge.  This 
case  was  tried  by  the  late  Chancellor  Walworth,  then  one  of  the 
circuit  judges,  who  instructed  the  jury  in  a  like  case,  that,  in  cases 
of  this  kind,  the  damages  are  always  in  the  discretion  of  the  jury, 
and  in  fixing  the  amount,  they  have  a  right  to  take  into  considera- 
tion the  nature  of  the  defense  set  up  by  the  defendant ;  that,  in  his 
defense,  he  had  sought  to  excuse  his  abandonment  of  the  plaintiff, 
on  the  ground  that  she  was  unchaste ;  that,  with  such  a  defense  on 
the  record,  a  verdict  for  nominal  damages  might  be  worse  than  a 
general  verdict  for  the  defendant ;  and  that,  where  such  a  defense 
was  spread  upon  the  record  for  the  purpose  of  destroying  her  char- 
acter, the  jury  would  be  justified  in  giving  exemplary  damages." 
The  court  in  bank,  upon  a  motion  for  a  new  trial,  affirmed  this  ruling 
at  the  circuit,  Judge  Sutherland  saying:  "That  where  the  defend- 
ant attempts  to  justify  his  breach  of  his  promise  of  marriage,  by 
stating  upon  the  record,  as  the  cause  of  his  desertion,  that  she  had 
had  criminal  intercourse  with  various  persons,  and  fails  entirely  in 
proving  it,  this  is  a  circumstance  which  ought  to  aggravate  the  dam- 
ages." This  court  also,  in  Kniffin  v.  McConnell  (30  N.  Y.  288),  has 
substantially  approved  of  this  case  of  Southard  v.  Rexford,  and  af- 
firmed this  same  rule,  in  respect  to  the  question  of  damages  in  ac- 
tions of  this  kind.  In  this  case  of  Kniffin  v.  McConnell,  the  allega- 
tion of  unchastity  on  the  part  of  the  plaintiff  was  not  set  up  in  the 
answer,  and  proof  of  it  was  not,  for  that  reason,  admitted  as  a  de- 
fense at  the  trial ;  but  the  proof  tending  to  establish  such  fact  was 
admitted  in  mitigation  of  damages. 

The  proof  having  been  thus  received,  the  circuit  judge,  in  his 
charge  to  the  jury,  among  other  things,  said  to  them  in  respect  to 
such  proof,  that  "if  the  defendant  had  come  into  court  and  at- 
tempted to  prove  her  guilty  of  misconduct  with  other  men,  of 
which  he  knew  she  was  not  guilty,  or  when  the  misconduct  was 
committed  with  himself,  it    aggravates   the    injury  and  aggravates 


772  BREACH   OF   PROMISE. 

the  claim  to  damages."  That  case  was  tried  by  me  at  the  circuit, 
and  this  charge  was  made  upon  the  principle  that  the  jury,  in  such 
cases,  were  entitled,  when  they  found  the  contract  of  marriage  made 
and  broken,  to  take  into  consideration  all  the  facts  and  circumstances 
of  the  case,  and  the  conduct  of  both  parties  toward  each  other,  and 
particularly  the  conduct  of  the  defendant,  in  his  whole  intercourse 
with,  and  treatment  of  the  plaintiff,  in  connection  with  the  making 
and  breach  of  the  contract,  and  afterward  up  to  and  including  the 
defense  and  trial  of  the  action ;  and  that,  among  other  facts,  it  was 
a  legitimate  subject  for  their  consideration,  if  the  fact  was  so,  that 
he  not  only  had  abandoned  her  and  trifled  with  her  affections,  but 
had  sought  to  disgrace  her  and  ruin  her  character.  This  court  vir- 
tually adopted  the  same  view  of  the  case.  In  the  opinion  of  Judge 
Ingraham,  who  gave  the  opinion  of  the  court,  he  assented  to  the 
correctness  of  the  rule  on  this  subject  as  asserted  in  Southard  v. 
Rexford,  and  only  doubted  the  correctness  of  the  charge  on  the 
ground  that  the  proofs  were  not  given  to  sustain  any  allegation 
upon  the  record.  He  says,  referring  to  that  case  :  "  The  rule  is 
undoubtedly  founded  upon  the  fact,  that  the  justification  is  placed 
upon  the  record,  and  that  it  will  ever  remain  there  as  a  reiteration 
of  the  charge  against  the  plaintiff ;  and  with  such  an  answer  on  the 
record,  a  trifling  verdict  would  show  that  such  charge  was  not  un- 
founded. The  same  rule  applies  in  actions  of  libel  and  slander  ;  but 
I  have  not  seen  any  case  where  the  rule  has  been  extended  beyond  a 
justification  on  the  record  ; "  and  further,  he  says  :  "  Certainly  the 
rule  should  be  extended  no  further  than  the  case  of  Southard  v. 
Rexford  has  carried  it,  and  when  it  is  not  made  part  of  the  record." 
Although  the  proof  in  that  case  had  been  given  and  received  for  the 
benefit  and  at  the  instance  of  the  defendant,  and  in  mitigation  of 
damages,  and  against  the  plaintiff's  objection  and  exception,  yet,  be- 
cause there  was  no  allegation  on  the  record  to  warrant  it,  the  learned 
judge  thought  the  defendant's  exception  to  the  charge  relating  to 
such  proof  a  valid  one,  for  the  simple  reason  that  the  allegation  to 
warrant  it  was  not  upon  the  record.  A  majority  of  the  court  dif- 
fered with  him  on  that  point ;  but  the  case,  upon  the  view  of  the 
learned  judge  himself,  is  entirely  in  point  in  favor  of  the  instruc- 
tions given  by  the  judge,  at  the  circuit,  in  this  case.  These  cases 
rest  upon  the  principle  which,  I  think,  is  well  established  in  this 
State  :  that  the  action  for  the  breach  of  the  contract  of  marriage, 
though  in  form  of  an  action  of  assumpsit,  is,  in  fact,  and  always  has 
been  since  it  was  sustained  at  common  law,  in  respect  to  this  ques- 
tion of  damages,  really  in  the  nature  of  an  action  for  a  tort.     Dam- 


SMITH  v.   CONDRY.  773 

ages  in  this  action  have  never  been  limited  to  the  simple  rule  gov- 
erning actions  upon  simple  contracts  for  the  payment  of  money. 
This  court  asserted  a  different  rule  in  the  case  of  Johnson  v.  Jenkins 
(24  N.  Y.  252).  In  this  case,  which  was  an  action  like  this,  for  a 
breach  of  promise  to  marry,  the  judge  at  the  circuit  had  charged, 
that  the  action  was  of  a  class  of  cases  for  which  the  law  allows  what 
are  called  aggravated  damages,  that  is  damages  beyond,  and  in  no 
way  measured  by,  any  proof  of  actual  pecuniary  loss  or  injury." 
Judge  Allen  said,  in  respect  to  this  charge  :  "  By  this,  I  understand 
that  the  jury  was  told,  that  in  this  class  of  actions,  as  in  libel,  slan- 
der, seduction,  criminal  conversation,  etc.,  they  are  at  liberty  to  give 
what  are  termed  punitive  damages,  as  distinguished  from  compen- 
satory damages ; "  and  referred  to  the  case  of  Hunt  v.  Burnet  (19  K. 
Y.  1T3),  and  to  Keezeler  v.  Thompson,  therein  referred  to  and  af- 
firmed. The  learned  judge  also  said :  "  That  damages  in  this  class 
of  cases  may  be  enhanced  by  such  facts  and  circumstances  as  aggra- 
vated the  injury  itself,  as  adding  to  the  indignity  and  contumely, 
increasing  mental  agony,  and  bringing  public  disgrace  and  conse- 
quent loss  of  reputation  upon  the  injured  party."  This  rule  clearly 
covers  and  justifies  the  charge  given  in  this  case.  I  think  the 
charge  entirely  correct,  and  that  the  judgment  below  should  be  af- 
firmed. 

All  concur  for  affirmance.     Judgment  affirmed. 


COLLISION. 

Collision;  Actual  Damages  only  allowed;  No  Profits. 


SUPEEME    COURT   OF   THE   UNITED    STATES. 

[1843.]  Smith  v.  Condry  (1  How.  28). 

The  actual  damage  sustained  by  the  party  at  the  time  and  place  of  injury,  and  not  prob- 
able profits  at  the  port  of  destination,  ought  to  be  the  measure  of  value  in  damages, 
in  cases  of  collision  as  well  as  in  cases  of  insurance. 

By  whose  fault  the  accident  happened,  is  a  question  of  fact  for  the  jury,  to  be  decided  by 
them  upon  the  whole  of  the  evidence. 

This  case  came  up,  by  writ  of  error,  from  the  Circuit  Court  of  the 
United  States,  for  the  District  of  Columbia,  and  was  argued  at  Janu- 


774  COLLISION. 

ary  term,  1842.  The  court  held  it  under  a  curia  advisare  vult,  and 
pronounced  their  decision  at  the  present  term. 

The  facts  in  the  case  were  these  : 

The  plaintiffs  in  error,  who  were  also  plaintiffs  in  the  court  below, 
were  the  owners  of  a  vessel  called  the  Francis  Depau,  which  was  lying 
in  the  port  of  Liverpool,  on  the  15th  of  February,  1838,  loaded  and 
ready  for  sea.  The  barque  Tasso,  owned  by  the  defendant,  in  com- 
ing out  of  the  docks,  ran  foul  of  the  Francis  Depau,  and  occasioned 
considerable  damage.  A  suit  was  brought  in  consequence,  and  upon 
the  trial  the  verdict  of  the  jury  was  for  the  defendant. 

There  were  three  exceptions. 

The  nature  of  the  first  two  of  these  appears  in  the  judgment  of 
the  court,  as  given  below.  The  third  exception  related  to  instructions 
given  by  the  judge  to  the  jury  at  the  trial  in  relation  to  inferences  to 
be  drawn  from  the  evidence  as  to  the  seaworthiness  of  the  "  Tasso," 
and  as  to  the  responsibility  for  the  collision. 

Mr.  Chief  Justice  Taney  delivered  the  opinion  of  the  court. 

This  case  arises  from  a  collision  in  the  port  of  Liverpool  between 
the  barque  Tasso  and  the  ship  Francis  Depau,  in  which  the  latter  sus- 
tained considerable  injury.  The  vessels  were  both  American  ;  the 
Francis  Depau  being  owned  by  the  plaintiffs  in  error,  and  the  Tasso 
by  the  defendant. 

It  appears  from  the  evidence  that,  at  the  time  the  accident  hap- 
pened, the  Tasso  was  in  charge  of  a  regular  pilot,  leaving  the  Prince's 
dock  on  her  homeward  voyage ;  and  the  Francis  Depau  was  at  anchor 
in  the  harbor,  laden  with  salt  and  ready  to  sail.  And  in  order  to 
prove  that  the  injury  arose  from  the  unskillful  management  of  the 
Tosso,  the  plaintiffs  offered  in  evidence  that  it  is  the  usage  of  vessels 
coming  out  of  the  docks  of  Liverpool  into  the  river,  to  have  their 
anchors  slung  in  tackle,  ready  to  be  thrust  over  the  bows,  and  in  a  sit- 
uation to  be  dropped  immediately  on  passing  through  the  lock  which 
connects  the  dock  with  the  basin,  and  before  passing  from  the  latter 
into  the  river  ;  and  that  the  anchor  of  the  Tasso  was  not  put  over  the 
bow,  nor  was  it  attempted  to  be  done,  until  she  had  passed  into  the 
river,  and  was  approaching  the  Francis  Depau. 

The  defendant  then  offered  testimony  to  show  that  in  passing 
from  the  basin,  between  the  piers  into  the  river,  the  Tasso  was  held 
in  check  by  a  hawser  fastened  to  one  of  the  piers,  but  that  the  hawser 
broke  just  as  the  vessel  cleared  the  pier  head;  and  the  pilot  perceiv- 
ing that  she  was  approaching  the  plaintiffs'  ship,  thereupon  gave 
orders  to  get  an  anchor  ready.  The  anchors  were  accordingly  fixed 
as  soon  as  possible,  in  the  manner  that  is  customary  in  going  out  of 


SMITH   v.   CONDRY.  775 

the  port ;  and  an  attempt  was  made  to  get  one  of  them  over  the  side, 
but  the  tackle  broke,  and  both  anchors  fell  on  deck,  and  the  vessel 
struck  the  Francis  Depau,  and  thereby  occasioned  the  injury  for 
which  this  suit  is  brought ;  that  everything  was  done  on  board  the 
Tasso,  according  to  the  directions  of  the  pilot,  and  every  effort  made 
to  prevent  the  collision  ;  but  that  it  was  blowing  fresh,  and  the  tide 
setting  towards  the  plaintiffs'  ship,  and  the  Tasso  would  not  mind  her 
helm. 

To  rebut  this  testimony,  the  plaintiff  offered  in  evidence,  by  the 
pilot,  that  the  defendant's  vessel  appeared  to  be  badly  furnished,  and 
that,  at  the  time  the  accident  happened,  the  mate  who  had  charge  of 
her  under  the  pilot  (the  master  being  absent),  declared  that  he  had 
not  a  rope  on  board  tit  to  hang  a  cat ;  and  further  offered  in  evidence 
that  where  the  fish  tackle  breaks,  and  it  is  important  that  the  anchor 
should  be  thrown  out,  it  can  be  accomplished  in  a  minute  or  two, 
by  fixing  another  rope  by  a  strop  to  the  anchor,  and  heaving  it  over 
the  bows. 

At  the  trial,  several  exceptions  were  taken  by  the  plaintiffs  to 
different  instructions  given  by  the  court  to  the  jury  ;  and  the  verdict 
and  judgment  in  the  circuit  court  having  been  in  favor  of  the  defend- 
ant, the  case  has  been  brought  here  for  revision  by  a  writ  of  error 
sued  out  by  the  plaintiffs.  We  proceed  to  examine  the  directions 
excepted  to,  in  the  order  in  which  they  appear  in  the  record. 

Upon  the  evidence  above  stated,  the  defendant  asked  the  court  to 
instruct  the  jury  that  under  the  statutes  of  Great  Britain,  of  the  37 
Geo.  3,  c.  78  ;  52  Geo.  3,  c.  39,  and  6th  of  Geo.  4,  c.  125,  the  defend- 
ant was  not  responsible  for  any  damage  occasioned  by  the  default, 
negligence  or  unskillfulness  of  the  pilot.  The  court  gave  this  in- 
struction, and  that  is  the  subject  of  the  first  exception. 

The  collision  having  taken  place  in  the  port  of  Liverpool,  the 
rights  of  the  parties  depend  upon  the  provisions  of  the  British  stat- 
utes then  in  force  ;  and  if  doubts  exist  as  to  their  true  construction, 
w7e  must  of  course  adopt  that  which  is  sanctioned  by  their  own 
courts. 

The  52  Geo.  3,  mentioned  in  this  exception,  is  a  general  act  for 
the  regulation  of  pilots  and  pilotage,  within  the  limits  specified  in  the 
law,  and  requires  the  masters  of  vessels  under  a  certain  penalty  to 
take  a  pilot,  and  provides  that  no  owner  or  master  shall  be  answerable 
for  any  loss  or  damage,  nor  be  prevented  from  recovering  on  any 
contract  of  insurance,  by  reason  of  any  default  or  neglect  on  the  part 
of  the  pilot.  But  this  statute  did  not  repeal  the  previous  one  of  37 
Geo.  3,  for  the  regulation  of  pilots  conducting  ships  into  and  out  of 


776  COLLISION. 

the  port  of  Liverpool ;  and  the  last-mentioned  law  required  the 
master  to  pay  full  pilotage  to  the  first  who  should  offer  his  services, 
■whether  he  was  employed  or  not.  This  act  did  not,  however,  impose 
any  penalty  for  refusal,  and  contained  no  clause  exempting  the  master 
and  owner  from  liability  for  loss  or  damage  arising  from  the  default 
of  the  pilot,  where  one  was  taken  on  board. 

Upon  these  acts  of  Parliament,  the  Court  of  King's  Bench  held, 
in  the  case  of  Caruthers  v.  Sydebotham  (4  Maule  &  Selw.  77),  that 
the  master  or  owner  of  a  vessel  trading  to  and  from  the  port  of 
Liverpool,  was  not  answerable  for  damages  occasioned  by  the  fault  of  the 
pilot.  But  in  the  case  of  the  Attorney-General  v.  Case  (3  Price,  302), 
the  same  question  was  discussed  in  the  argument  before  the  Court  of 
Exchequer,  and  it  appears  to  have  been  the  opinion  of  that  court  that 
the  master  and  owner  were  liable  in  the  same  manner  as  if  the  pilot 
had  not  been  on  board. 

The  question,  it  is  true,  did  not  necessarily  arise  in  the  last-men- 
tioned case,  for  the  vessel  was  at  anchor  in  the  river  Mersey  when 
the  disaster  happened  ;  and  a  vessel  at  anchor  was  not  bound  to  have 
a  pilot  on  board.  If  in  that  situation  the  master  thought  proper  to 
employ  one,  the  pilot  was  undoubtedly  his  agent,  and  consequently 
he  was  responsible  for  his  acts.  But  in  deciding  the  case,  the  court 
expressed  their  opinions  on  the  two  statutes  of  Geo.  3,  before  men- 
tioned, in  cases  where  pilots  were  required  to  be  on  board,  and  held 
that  the  provisions  of  the  52  Geo.  3,  exempting  masters  and  owners 
from  liability,  did  not  extend  to  cases  embraced  by  the  local  pilot  act 
for  Liverpool,  and  strongly  intimated  that  there  was  a  distinction 
between  the  obligation  to  take  a  pilot  under  a  penalty  and  the  obliga- 
tion to  pay  full  pilotage  to  the  first  that  offered,  whether  he  was 
taken  or  not. 

Since  these  decisions  were  made  in  the  King's  Bench  and  Ex- 
chequer, the  37th  Geo.  3  has  been  repealed  by  the  5th  of  Geo.  4,  and 
the  52  Geo.  3  has  been  repealed  by  the  general  pilot  act  of  the  6th  of 
Geo.  4 ;  and  these  two  statutes  of  Geo.  4  were  the  laws  in  force  at 
the  time  of  the  collision  in  question.  But  although  some  changes 
were  made  in  the  Liverpool  pilot  act  in  the  first-mentioned  statute, 
and  in  the  general  pilot  law  by  the  second,  yet  in  regard  to  the  sub- 
ject now  under  consideration,  these  two  statutes  are  the  same  in  sub- 
stance with  the  preceding  ones  which  they  respectively  repealed ; 
and  the  adjudged  cases  above  mentioned  apply  with  the  same  force 
to  the  question  before  us,  as  if  they  had  been  made  since  the  passage 
of  the  acts  of  Geo.  4. 

In  determining,  however,  the  true  construction  of  these  acts  of 


SMITH   v.    COKDRY.  777 

Parliament,  we  are  not  left  to  decide  between  the  conflicting  opinions 
of  the  King's  Bench  and  Court  of  Exchequer.  The  same  question 
has  since,  on  more  than  one  occasion,  arisen  in  the  British  Court  of 
Admiralty,  and  the  decision  in  the  King's  Bench  has  been  constantly 
sustained  ;  and  we  presume  it  is  now  regarded  as  the  settled  construc- 
tion of  these  pilot  acts  (Abb.  on  Ship.  [Shee's  ed.]  184,  n,  z  ;  The 
Maria,  1  Rob.  New  Adm.  Rep.  95  ;  The  Protector,  1  Rob.  New  Adm. 
Rep.  45 ;  The  Diana,  1  Rob.  New  Adm.  Rep.)  We  think,  there- 
fore, that  the  Circuit  Court  was  right  in  the  first  instruction  given  to 
the  jury. 

The  second  also  is  free  from  objection.  The  question  there  was 
as  to  the  rule  of  damages  in  case  the  plaintiffs  should  show  them- 
selves entitled  to  a  verdict.  They  offered  to  prove  that  if  the  ship 
had  not  been  prevented  from  sailing  by  the  injury  complained  of, 
she  would  in  due  course  have  arrived  in  Georgetown  (as  was  intended 
when  the  lading  was  taken  in)  in  time  for  the  sale  of  her  cargo  at  the 
fishing  season  in  the  Potomac  river,  when  there  is  a  great  demand 
for  salt ;  that  the  injury  delayed  her,  and  prevented  her  arrival  until 
the  season  was  over,  and  thereby  made  a  difference  of  ten  or  eleven 
cents  per  bushel  in  the  value  of  the  salt,  at  her  home  port,  and  occa- 
sioned a  loss  upon  the  cargo  of  $2,101  20.  The  defendant  objected 
to  this  testimony,  and  the  court  refused  to  admit  it. 

It  has  been  repeatedly  decided  in  cases  of  insurance,  that  the  in- 
sured cannot  recover  for  the  loss  of  probable  profits  at  the  port  of 
destination,  and  that  the  value  of  the  goods  at  the  place  of  shipment 
is  the  measure  of  compensation.  There  can  be  no  good  reason  for 
establishing  a  different  rule  in  cases  of  loss  by  collision.  It  is  the 
actual  damage  sustained  by  the  party  at  the' time  and  j)lace  of  the  in- 
jury that  is  the  measure  of  damages. 

The  judgment  of  the  Circuit  Court,  however,  was  reversed  on  the 
ground  of  an  erroneous  instruction  to  the  jury,  excepted  to  in  the 
plaintiffs'  third  of  exception,  and  not  material  here. 

Note. — For  a  discussion  us  to  the  nature  and  measure  of  the  damages  in  a 
case  of  collision,  see  The  Harriet  Newhall,  3  Ware,  105  (1856). 

It  was  held  at  a  comparatively  early  day  by  the  Supreme  Court  of  the  United 
States,  that  the  probable  or  possible  profits  of  an  unfinished  voyage  never  afford  a 
safe  rule  of  damages  in  case  of  a  marine  trespass,  but  that  the  prime  cost  or 
value  of  the  property  lost,  and  in  case  of  injury,  the  diminution  in  value  by 
reason  of  the  injury,  with  interest,  afford  the  true  measure.  The  Amiable 
Nancy,  3  Wheat.  54G;  The"  Anna  Maria,  2  Wheat.  327. 


778  collision. 


Collision  ;  Sunken  Yessel. 


SUPREME    COURT   OF   THE    UNITED    STATES. 

[1851.]  Williamson  v.  Barrett  (13  How.  101). 

The  proper  measure  of  damages  is  a  sum  sufficient  to  raise  the  sunken  boat,  repair 
her  and  compensate  the  owners  for  the  loss  of  her  use  during  the  time  when  she  was 
being  refitted. 

This  case  was  brought  up  by  writ  of  error,  from  the  Circuit 
Court  of  the  United  States,  for  the  District  of  Ohio. 

It  was  an  action  of  trespass  on  the  case  brought  by  the  owners 
of  the  steam-boat  Major  Barbour  (the  defendants  in  error),  against 
the  owners  of  the  Paul  Jones,  another  steam-boat,  for  injuries  re- 
sulting from  a  collision  between  the  boats. 

The  evidence  and  proceedings  on  the  trial  sufficiently  appear 
from  the  opinion  of  the  court. 

Mr.  Justice  Nelson  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  Circuit  Court  of  the  United  States 
for  the  district  of  Ohio. 

The  plaintiifs  in  the  court  below,  the  defendants  here,  who  were 
the  owners  of  the  steam-boat  Major  Barbour,  brought  an  action 
against  the  defendants,  the  owners  of  the  steam-boat  Paul  Jones,  to 
recover  damages  occasioned  by  a  collision  upon  the  Ohio  river  on 
the  3d  February,  1848. 

The  Major  Barbour  was  descending  the  river  at  the  time,  and 
the  Paul  Jones  ascending,  the  latter  heavily  laden  and  of  much 
larger  size  than  the  former. 

Evidence  was  given  by  the  plaintiifs  tending  to  show,  that  their 
boat  was  about  in  the  middle  of  the  river  at  the  time  the  collision 
took  place  ;  that  the  defendants'  boat  was  ascending  the  Indiana 
shore,  and  that  a  short  time  before  the  collision  she  suddenly 
changed  her  course  and  left  the  shore,  running  across  the  river  into 
the  Major  Barbour,  causing  the  damage  in  question.  While  on  the 
part  of  the  defendants,  it  was  claimed,  and  evidence  given  to  show, 
that  the  plaintiffs'  boat  was  descending  near  the  Indiana  shore,  and 
that  the  collision  occurred  near  that  shore,  and  that  the  plaintiffs' 
boat  a  short  time  before  it  happened  suddenly  turned  out  from  the 
shore  and  ran  across  the  bow  of  the  Paul  Jones,  causing  the 
damage. 


WILLIAMSON  v.   BARRETT.  779 

Evidence  was  also  given  tending  to  show  that  the  engine  of  the 
plaintiffs'  boat  was  stopped,  and  the  boat  floated  as  soon  as  the  dan- 
ger was  discovered,  and  for  some  time  previous  to  the  collision,  but, 
it  was  admitted  she  did  not  back  her  engines,  and  it  was  claimed 
that  she  was  not  bound  to  do  so,  according  to  the  rules  and  usages 
of  the  navigation.  While,  on  the  part  of  the  defendants,  it  was 
claimed,  and  evidence  given  to  show,  that  the  Paul  Jones,  some  time 
before  the  collision,  stopped  her  engines,  and  reversed  the  same  to 
back  the  boat,  and  had  made  from  one  to  three  revolutions  back,  and 
was  actually  backing  at  the  time  of  the  collision ;  and  also  that  the 
engines  of  the  plaintiffs'  boat  were  not  stopped  sufficiently  early, 
and  owing  to  that,  and  not  attempting  to  back  her  engines,  she  con- 
tributed to  the  collision. 

Evidence  was  further  given  tending  to  show,  that  boats  navigat- 
ing the  Ohio  river  were  bound  to  observe  the  following  rules  in 
passing  each  other  :  The  boat  descending,  in  case  of  apprehended 
difficulties,  or  collision,  was  bound  to  stop  her  engines,  and  float,  at 
a  suitable  distance,  so  as  to  stop  her  headway  ;  and  the  boat  ascend- 
ing, to  make  the  proper  manoeuvre  to  pass  freely. 

AVhen  the  evidence  closed,  the  counsel  for  the  defendants  re- 
quested the  court  to  instruct  the  jury,  that  the  plaintiffs  ought  not 
to  recover,  if  the  collision  could  have  been  avoided  by  reversing  the 
engines  and  backing  their  boat,  in  addition  to  stopping  and  floating  ; 
and,  that  the  master  was  bound  to  use  all  the  means  in  his  power  to 
prevent  a  collision. 

And  thereupon,  the  court  among  other  things  charged,  that  if  the 
Major  Barbour  was  in  her  projDer  track  for  a  descending  boat,  near 
the  middle  of  the  river,  and  the  Paul  Jones  in  ascending  the  river 
was  in  her  proper  track  near  the  Indiana  shore,  and  the  latter  turned 
out  of  her  proper  course  across  the  river  or  quartering,  as  stated  by 
some  of  the  witnesses,  so  as  to  threaten  a  collision  ;  and  that  as  soon 
as  discovered,  the  Major  Barbour  stopped  her  engine,  rang  her  bell, 
and  floated  down  the  stream,  as  the  custom  of  the  river  required, 
leaving  the  ascending  boat  the  choice  of  sides  to  pass  her,  and  this 
being  the  law  of  the  river,  she  was  not  on  the  near  approach  of  the 
boat,  required  to  back  her  engine,  as  that  might  bring  her  in  contact 
with  the  other  boat.  She  had  a  right  to  presume  the  Paul  Jones 
did  not  intend  to  run  directly  into  her.  And  that,  if  any  injury 
was  done  to  the  Major  Barbour,  the  plaintiffs'  boat,  under  such  cir- 
cumstances, by  the  Paul  Jones  running  into  her,  the  plaintiffs  were 
entitled  to  recover. 

The  court  further  charged,  that,  if  the  jury  should  find  for  the 


780  COLLISION. 

plaintiffs  they  ought  to  give  such  damages  as  would  remunerate 
them  for  the  loss  necessarily  incurred  in  raising  the  boat,  and  in 
repairing  her  ;  and  also  for  the  use  of  her  during  the  time  necessary 
to  make  the  repairs,  and  fit  her  for  business. 

The  learned  judge,  after  holding  that  no  error  had  been  com- 
mitted by  the  Circuit  Court  in  the  first  branch  of  its  instructions  to 
the  jury,  proceeded  as  follows  : 

As  to  the  question  of  damages. 

The  jury  were  instructed,  if  they  found  for  the  plaintiffs,  to 
give  damages  that  would  remunerate  them  for  the  loss  necessarily 
incurred  in  raising  the  boat,  and  repairing  her  ;  and  also,  for  the  use 
of  the  boat  during  the  time  necessary  to  make  the  repairs,  and  lit 
her  for  business. 

By  the  use  of  the  boat  we  understand  what  she  would  produce 
to  the  plaintiffs  by  the  hiring  or  chartering  of  her  to  run  upon  the 
river  in  the  business  in  which  she  had  been  usually  engaged. 

The  general  rule  in  regulating  damages  in  cases  of  collision,  is  to 
allow  the  injured  party  and  indemnity  to  the  extent  of  the  loss  sus- 
tained. This  general  rule  is  obvious  enough  ;  but  there  is  a  good 
deal  of  difficulty  in  stating  the  grounds  upon  which  to  arrive,  in  all 
cases,  at  the  proper  measure  of  that  indemnity. 

The  expenses  of  raising  the  boat,  and  of  repairs  may,  of  course, 
be  readily  ascertained,  and  in  respect  to  the  repairs,  no  deduction  is 
to  be  made,  as  in  insurance  cases,  for  the  new  materials  in  place 
of  the  old.  The  difficulty  lies  in  estimating  the  damage  sustained 
by  the  loss  of  the  service  of  the  vessel  while  she  is  undergoing  the 
repairs. 

That  an  allowance  short  of  some  compensation  for  this  loss 
would  fail  to  be  an  indemnity  for  the  injury  is  apparent. 

This  question  was  directly  before  the  Court  of  Admiralty  in 
England,  in  the  case  of  the  Gazelle,  decided  by  Dr.  Lushington,  in 
1814.  2  W.  Robinson,  279.  That  was  a  case  of  collision,  and  in 
deciding  it,  the  court  observed,  "  that  the  party  who  had  suffered 
the  injury  is  clearly  entitled  to  an  adequate  compensation  for  any 
loss  he  may  sustain  for  the  detention  of  the  vessel  during  the  period 
which  is  necessary  for  the  completion  of  the  repairs,  and  furnishing 
the  new  articles." 

In  fixing  the  amount  of  the  damages  to  be  paid  for  the  de- 
tention, the  court  allowed  the  gross  freight,  deducting  so  much  as 
would,  in  ordinary  cases,  be  disbursed  on  account  of  the  ship's  ex- 
penses in  earning  it. 

A  case  is  referred  to,   decided  in  the  common-law  courts,   in 


WILLIAMSON   v.   BARRETT.  781 

which  the  gross  freight  was  allowed  without  any  deduction  for 
expenses,  which  was  disapproved  as  inequitable  and  exceeding  an 
adequate  compensation,  and  the  qualification  we  have  stated  laid 
down. 

This  rule  may  afford  a  very  fair  indemnity  in  cases  where  the 
repairs  are  completed  within  the  period  usually  occupied  in  the  voy- 
age in  which  the  freight  is  to  be  earned.  But,  if  a  longer  period  is 
required,  it  obviously  falls  short  of  an  adequate  allowance.  Neither 
will  it  apply  where  the  vessel  is  not  engaged  in  earning  freight  at 
the  time.  The  principle,  however,  governing  the  court  in  adopting 
the  freight  which  the  vessel  was  in  the  act  of  earning,  as  a  just 
measure  of  compensation  in  the  case,  is  one  of  general  application. 
It  looks  to  the  capacity  of  the  vessel  to  earn  freight,  for  the  benefit 
of  the  owner,  and  consequent  loss  sustained  while  deprived  of  her 
service.    In  other  words,  to  the  amount  she  would  earn  him  on  hire. 

It  is  true,  in  that  case,  the  ship  was  engaged  in  earning  freight 
at  the  time  of  the  collision  ;  and  the  loss,  therefore,  more  fixed,  and 
certain  than  in  the  case  where  she  is  not  at  the  time  under  a  charter- 
party,  and  where  her  earnings  must  in  some  measure  depend 
upon  the  contingency  of  obtaining  for  her  employment.  If,  how- 
ever, we  look  to  the  demand  in  the  market  for  vessels  of  the 
description  that  has  been  disabled,  and  to  the  price  there,  which  the 
owner  could  obtain  or  might  have  obtained  for  her  hire  as  the 
measure  of  compensation,  all  this  uncertainty  disappears.  If  there 
is  no  demand  for  the  employment,  and,  of  course,  no.  hire  to  be 
obtained,  no  compensation  for  the  detention  during  the  repairs  will 
be  allowed,  as  no  loss  would  be  sustained. 

But,  if  it  can  be  shown,  that  the  vessel  might  have  been  chartered 
during  the  period  of  the  repairs,  it  is  impossible  to  deny  that  the 
owner  has  not  lost  in  consequence  of  the  damage,  the  amount  which 
she  might  have  thus  earned. 

The  market  price,  therefore,  of  the  hire  of  the  vessel,  applied  as 
a  test  of  the  value  of  the  service  will  be,  if  not  as  certain  as  in  the 
the  case  where  she  is  under  a  charter-party,  at  least,  so  certain  that, 
for  all  practical  purposes  in  the  administration  of  justice,  no  sub- 
stantial distinction  can  be  made.  It  can  be  ascertained  as  readily, 
and  with  as  much  precision  as  the  price  of  any  given  commodity  in 
the  market ;  and  affords  as  clear  a  rule  for  estimating  the  damage 
sustained  on  account  of  the  loss  of  her  service,  as  exists  in  the  case 
of  damage  to  any  other  description  of  personal  property,  of  which 
the  party  has  been  deprived. 

In  the  case  of  the  Gazelle,  for  ought  that  appears,  the  allowance 


782  COLLISION. 

of  the  freight  afforded  a  full  indemnity  for  the  detention  of  the 
vessel  while  undergoing  the  repairs.  This  would  be  so,  as  already 
stated,  if  they  were  made  within  the  period  she  would  have  been 
engaged  in  earning  it.  If  it  were  otherwise,  it  is  certain,  that  the 
indemnity  allowed  fell  short  of  the  rule  laid  down  under  which  it 
was  made,  which  was,  that  the  party  was  entitled  to  an  adequate 
compensation  for  any  loss  he  might  sustain  for  the  detention  of  the 
vessel  during  the  period  which  was  necessary  for  the  completion  of 
the  repairs  and  furnishing  the  new  articles. 

The  allowance  of  the  freight  she  was  earning  at  the  time  was 
but  a  mode  of  arriving  at  the  loss  in  the  particular  case  under 
the  general  rule  thus  broadly  stated  ;  and  afforded,  doubtless,  full 
indemnity. 

"We  are  of  opinion,  therefore,  that  the  rule  of  damages  laid  down 
by  the  court  below  was  the  correct  one,  and  is  properly  applicable 
in  all  similar  cases.  There  was  no  question  made  in  respect  to  the 
freight  of  the  vessel,  and  hence  the  general  principle  stated  was 
applicable,  irrespective  of  this  element,  as  influencing  the  result. 

There  were  some  other  questions  raised  in  the  case  of  a  technical 
character,  and  urged  on  the  argument.  But  we  deem  it  sufficient  to 
say,  that  they  are  so  obviously  untenable,  that  it  is  not  important  to 
notice  them  specially. 

We  are  of  opinion,  therefore,  the  judgment  of  the  court  below 
was  right,  and  should  be  affirmed. 

Mr.  Justice  Catron  dissented,  with  whom  Mr.  Chief  Justice 
Taney,  and  Mr.  Justice  Daniel  concurred. 

Mr.  Justice  Catron. — This  action  is  one  of  owners  against  own- 
ers of  respective  steam-boats.  It  is  an  action  on  the  case,  in  which 
no  vindictive  damages  can  be  inflicted  on  the  defendants,  as  they 
committed  no  actual  trespass  ;  and  therefore,  in  assessing  damages 
against  them,  moderation  must  be  observed. 

In  the  next  place,  the  collision  occurred  on  the  Ohio  river,  and 
the  rules  of  law  applicable  to  the  controversy  must  accommodate 
themselves  to  that  navigation. 

The  injured  boat  was  sunk,  and  the  plaintiffs  declared  for  a  total 
loss  ;  but  it  came  out  in  evidence,  that  she  was  raised  and  repaired, 
and  again  commenced  running  the  river.  On  this  state  of  facts  the 
jury  was  charged  :  1st.  That  damages  should  be  given  for  raising 
the  boat :  2d.  For  repairing  her  :  and  3d.  Also  damages  in  addition, 
"  for  her  use  during  the  time  necessary  to  make  the  repairs  and  fit 
her  for  business." 


WILLIAMSON   v.    BARRETT.  783 

The  expression  "  for  her  use,"  must  mean  either  the  clear  profits 
of  her  probable  earnings ;  or,  how  much  she  could  have  been  hired 
for  to  others  during  the  time  of  her  detention.  Both  propositions 
come  to  the  same  result,  to  wit :  how  much  clear  gains  the  owner  of 
the  Major  Barbour,  could  have  probably  made  by  their  boat,  had  she 
not  been  injured,  during  the  time  she  was  detained  in  consequence 
of  being  injured.  This  -  probable  gain,  the  jury  was  instructed  to 
estimate  as  a  positive  loss,  and  to  charge  the  defendants  with  it. 

The  suit  is  merely  for  loss  of  the  boat,  and  has  no  reference 
to  the  cargo.  It  does  not  appear  that  she  had  either  cargo,  or 
passengers  ;  nor  does  the  evidence  show  in  what  trade  she  was 
engaged. 

In  cases  of  marine  torts,  no  damages  can  be  allowed  for  loss  of 
a  market ;  nor  for  the  probable  profits  of  a  voyage.  The  rule  being 
too  uncertain  in  its  nature  to  entitle  it  to  judicial  sanction.  Such 
has  been  the  settled  doctrine  of  this  court  for  more  than  thirty 
years. 

In  the  case  of  the  Amiable  ISTancy,  3  "Wheat.  560,  when  discuss- 
ing the  propriety  of  allowing  for  probable  loss  of  profits  on  a  voy- 
age that  was  broken  up  by  illegal  conduct  of  the  respondents' 
agents,  this  court  declared  the  general  and  settled  rule  to  be,  that 
the  value  of  the  property  lost,  at  the  time  of  the  loss ;  and  in  case, 
of  injury,  the  diminution  in  value,  by  reason  of  the  injury,  with  in- 
terest on  such  valuation,  afforded  the  true  measure  for  assessing 
damages  :  "  This  rule,"  says  the  court,  "  may  not  secure  a  complete 
indemnity  for  all  possible  injuries ;  but  it  has  certainty,  and  general 
applicability  to  recommend  it,  and  in  almost  all  cases,  will  give  a 
fair  and  just  recompense."  And  in  the  suit  of  Smith  v.  Condrv  (1 
How.  35),  it  is  declared,  that  in  cases  of  collision  "  the  actual  dam- 
age sustained  by  the  party,  at  the  time  and  place,  of  the  injury,  is 
the  measure  of  damages."  In  that  ease  there  was  detention  as  well 
as  here,  but  it  never  occurred  to  any  one,  that  loss  of  time  could  be 
added  as  an  item  of  damages.  In  other  words,  that  damages  might 
arise  after  the  injury  and  be  consequent  to  it ;  and  which  might 
double  the  amount  actually  allowed. 

The  decision  found  in  3  Wheat,  was  made  in  1818,  and  I  had 
supposed  for  many  years  past,  the  rule  was  established,  that  conse- 
quential damages  for  loss  of  time,  and  which  damages  might  con- 
tinue to  accrue,  for  months  after  the  injury  was  inflicted,  could  not 
be  recovered ;  and  that  there  was  no  distinction  in  principle,  be- 
tween the  loss  of  the  voyage,  and  loss  of  time,  consequent  on  the 
injury. 


784  COLLISION. 

The  profits  claimed  and  allowed  by  the  Circuit  Court,  depended 
on  remote,  uncertain,  and  complicated  contingencies,  to  a  greater 
extent,  than  was  the  case,  in  any  one  instance,  in  causes  coming  be- 
fore this  court,  where  a  claim  to  damages  was  rejected  for  uncer- 
tainty. 

Here,  full  damages  are  allowed  for  raising  the  boat,  and  for  her 
repairs.  To  these  allowances  no  objection  is  made  ;  it  only  extends 
to  the  additional  item  for  loss  of  time.  That  the  investigation  of 
this  additional  charge  will  greatly  increase  the  stringency,  tedious- 
ness,  and  charges  of  litigation,  in  collision  cases,  is  manifest ;  nor 
should  this  consideration  be  overlooked.  The  expense  and  harass- 
ment of  these  trials  have  been  great  when  the  old  rule  was  applied  ; 
and,  the  contest,  if  the  rule  is  extended,  must  generally  double  the 
expense  and  vexation  of  a  full  and  fair  trial.  Nor  will  it  be  possi- 
ble, as  it  seems  to  me,  for  a  jury,  or  for  a  court  (where  the  proceed- 
ing is  by  libel)  to  settle  contingent  profits,  on  grounds  more  certain, 
than  probable  conjecture.  The  supposition  that  the  amount  of 
damages  can  be  easily  fixed,  by  proof  of  what  the  injured  boat 
could  have  been  hired  for  on  a  charter-party,  during  her  detention, 
will  turn  out  to  be  a  barren  theory,  as  no  general  practice  of  char- 
tering steam-boats,  is  known  on  the  western  rivers,  nor  can  it  ever 
exist ;  the  nature  of  the  vessels,  and  the  contingencies  of  navigation 
being  opposed  to  it.  In  most  cases,  the  proof  will  be,  that  the  boat 
could  not  have  found  any  one  to  hire  her ;  and  then,  the  contending 
parties  will  be  thrown  on  the  contingency,  whether  she  could  have 
earned  something,  or  nothing ;  little,  or  much,  hi  the  hands  of  her 
owner,  during  the  time  she  was  necessarily  detained  ;  and  this  will 
involve  another  element  of  contention  of  great  magnitude  ;  to  wit, 
whether  she  was  repaired  in  reasonable  time.  Forasmuch  as  no 
necessity  will  be  imposed  on  the  owner  to  bestow  the  repairs,  as  is 
now  the  case,  he  will  rarely,  if  ever,  do  so  ;  and  having  the  colliding 
boat  and  her  owners  in  his  power,  gross  oppression  will  generally 
follow,  in  applying  this  new  and  severe  measure  of  damages  to 
western  river  navigation. 

In  a  majority  of  cases  of  collision  on  the  western  waters,  partial 
injury,  repairing,  and  detention  of  the  injured  boat  occur.  Contests 
before  the  courts  have  been  numerous  where  the  precise  question  of 
compensation  here  claimed  was  involved,  and  yet  in  an  experience 
of  twenty-five  years,  I  have  never  known  it  raised  until  now.  The 
bar,  the  bench,  and  those  engaged  in  navigation,  have  acquiesced  in 
the  rule,  that  full  damages  for  the  injury  at  the  time  and  place 
when  it  occurred,  with  legal  interest  on  the  amount,  was  the  proper 


THE   BALTIMORE.  785 

measure ;  nor  do  I  tliink  it  should  be  disturbed  ;  and  that  therefore 
the  judgment  of  the  Circuit  Court  should  be  reversed,  because  the 
jury  were  improperly  instructed,  in  this  particular. 


Collision;  Judiciary  Act;  Costs;  Counsel  Fees  in  Admiralty. 


UNITED  STATES  SUPREME  COURT. 

1809.]  The    Baltimore  (8  Wall.   377). 

Restitutio  in  integrum  is  the  leading  maxim  as  to  the  measure  of  damages  in  cases  of  libel 
in  admiralty,  for  injury  to  vessels,  for  collision  ;  in  other  words,  where  repairs  are 
practicable,  the  general  rule  is,  that  the  damages  shall  be  sufficient  to  restore  the 
injured  vessel  to  the  condition  in  which  she  was  at  the  time  the  collision  occurred. 
And  tins  rule  does  not  allow  deduction,  as  in  insurance  cases,  for  the  new  materials 
furnished  in  the  place  of  the  old. 

Although,  if  a  vessel  be  sunk  by  collision  in  so  deep  water,  or  otherwise  so  sunk  that  she 
cannot  be  raised  and  repaired  except  at  an  expense  equal  to  or  greater  than  the  sum 
which  she  would  be  worth  when  repaired,  the  rule  cannot  apply,  still  the  mere  fact 
that  a  vessel  is  sunk  is  not,  of  itself,  sufficient  to  show  that  the  loss  is  total,  nor  to 
justify  the  master  and  owner  in  abandoning  her  and  her  cargo. 

Courts  of  admiralty  cannot  properly  allow  counsel  fees  to  the  counsel  of  a  gaining  side  in 
admiralty,  as  an  incident  to  the  judgment,  beyond  the  costs  and  fees  allowed  by  stat- 
ute. Under  the  statute  now  regulating  the  fees  of  attorneys,  solicitors  and  proctors 
(the  statute,  namely,  of  26th  of  February,  1853,  10  Stat,  at  Large,  161),  a  docket 
fee  of  twenty  dollars  may  be  taxed,  on  a  final  hearing  in  admiralty,  if  the  libellant 
recover  fifty  dollars,  but,  if  he  recovers  less  than  fifty  dollars,  only  ten. 

The  schooner  Woolston,  with  a  cargo  of  coal,  and  the  steamer 
Baltimore,  collided  in  the  Potomac,  on  the  16th  of  December,  1863, 
and  the  schooner  and  her  cargo  sank.  The  owners  of  the  schooner 
accordingly  libelled  the  steamer  in  the  admiralty  court  of  the  dis- 
trict. The  libel  averred  that  the  collision  had  been  caused  wholly 
by  the  steamer's  fault,  and  that  the  schooner  had  sunk  in  such  deep 
water  as  to  make  both  her  and  her  cargo  a  total  loss,  since  the  cost 
of  raising  either,  or  both,  would  be  greater  than  its  or  their  value. 

These  allegations,  both  as  to  the  fault  and  the  total  loss,  the 
answer  explicitly  denied.  The  testimony  as  to  the  question  of 
fault,  need  not  be  stated,  since  it  appeared  that  a  part  of  it  was 
given  below,  and  was  not  in  the  record  sent  to  this  court,  and 
the  court  therefore  did  not  pass  at  all  upon  the  merits.  On  the 
other  matter,  the  matter  of  total  loss,  it  rather  showed  that  the 
water  in  which  the  schooner  went  down,  was  not  so  deep  but  that 
50 


786  COLLISION. 

her  masts  were  visible  eighteen  feet  above  the  water,  and  that  her 
position,  as  she  lay,  was  clearly  discernible. 

No  proof  was  given  of  the  fact  of  a  total  loss,  further  than  that 
the  vessel  sunk. 

The  court,  regarding  the  steamer  as  in  fault,  entered  a  decree  for 
the  libellants,  and,  upon  the  report  of  a  commissioner,  decreed,  as 
damages,  notwithstanding  exceptions  by  the  respondents,  the  full 
value  of  the  schooner  and  cargo,  at  the  time  of  the  collision,  and 
awarded  to  the  libellants'  counsel  $500  as  a  fee.  This  decree,  hav- 
ing been  affirmed  by  the  Supreme  Court  in  General  Term,  the  case 
was  now  here  on  appeal. 

Mr.  Justice  Clifford,  in  delivering  the  opinion  of  the  court, 
after  recapitulating  the  facts  and  discussing  some  questions  not  ma- 
terial to  the  rule  of  damages,  proceeded  as  follows : 

Suppose  the  libellants  are  entitled  to  recover,  still  the  claimants 
insist  that  the  rule  of  damages  adopted  by  the  district  court  is 
erroneous. 

Owners  of  ships  and  vessels  are  not  now  liable  for  any  loss,  dam- 
age or  injury  by  collision  occasioned  without  their  privity  or  knowl- 
edge, beyond  the  amount  of  their  interest  in  such  ship  or  vessel  and 
her  freight  then  pending  (9  Stat,  at  Large,  635 ;  The  Niagara,  21 
How.  26).  Subject  to  that  provision  in  the  act  of  Congress,  the 
damages  which  the  owner  of  the  injured  vessel  is  entitled  to  recover 
are  estimated  in  the  same  manner  as  in  other  suits  of  like  nature  for 
injuries  to  personal  property,  and  the  owner,  as  the  suffering  party, 
is  not  limited  to  compensation  for  the  immediate  effects  of  the  injury 
inflicted,  but  the  claim  for  compensation  may  extend  to  loss  of 
freight,  necessary  expense  incurred  in  making  repairs,  and  unavoid- 
able detention  (1  Parsons  on  Shipping,  538  ;  Maude  &  Pollock  on 
Shipping,  411 ;  The  Ann  Caroline,  2  Wall.  538 ;  Tindall  v.  Bell,  11 
Mees.  &  W.  232V 

Restitutio  in  integrum  is  the  leading  maxim  in  such  cases,  and 
where  repairs  are  practicable  the  general  rule  followed  by  the  ad- 
miralty courts  in  such  cases  is  that  the  damages  assessed  against  the 
respondent  shall  be  sufficient  to  restore  the  injured  vessel  to  the 
condition  in  which  she  was  at  the  time  the  collision  occurred ;  and 
in  respect  to  the  materials  for  the  repairs  the  rule  is  that  there  shall 
not,  as  in  insurance  cases,  be  any  deduction  for  the  new  materials 
furnished  in  the  place  of  the  old,  because  the  claim  of  the  injured 
party  arises  by  reason  of  the  wrongful  act  of  the  party  by  whom  the 
damage  was  occasioned,  and  the  measure  of  the  indemnification  is 
not  limited  by  any  contract,  but  is  coextensive  with  the  amount  of 


THE   BALTIMORE.  787 

the  damage  (Williamson  'v.  Barrett,  13  How.  110;  The  Gazelle,  2 
W.  Robinson,  281  ;  Sedgwick  on  Damages  [1th  ed.],  511  ;  Mac- 
Lachlan  on  Shipping,  285). 

Such  repairs,  in  consequence  of  a  collision,  may  enhance  the 
value  of  the  vessel  and  render  her  worth  more  than  she  was  prior  to 
the  accident,  and  in  that  state  of  the  case  the  rule  in  insurance  cases 
is  that  one-third  of  the  value  of  the  new  material  is  deducted,  be- 
cause the  new  material  is  more  valuable  than  the  old,  but  the  rule  is 
not  so  where  the  repairs  are  required  in  consequence  of  a  culpable 
collision  (The  Clyde,  Swabey,  21;  The  Pactolus,  lb.  171;  The 
Catharine,  17  How.  170). 

Restitution  or  compensation  is  the  rule  in  all  cases  where  re- 
pairs are  practicable,  but  if  the  vessel  of  the  libellants  is  totally  lost, 
the  rule  of  damage  is  the  market  value  of  the  vessel  (if  the  vessel  is 
of  a  class  which  has  such  value)  at  the  time  of  her  destruction  (The 
Clyde,  Swabey,  23  ;  1  Parsons  on  Shipping,  512  ;  The  Granite  State, 
3  Wall.  310 ;  The  Ann  Caroline,  2  Id.  538 ;  The  Rebecca,  Bl.  &  H. 
317 ;  The  New  Jersey,  Olcott,  411). 

Allowance  for  freight  is  made  in  such  a  case,  reckoning  the  gross 
freight  less  the  charges  which  would  necessarily  have  been  incurred 
in  earning  the  same,  and  which  were  saved  to  the  owner  by  the  acci- 
dent, together  with  interest  on  the  same  from  the  date  of  the  prob- 
able termination  of  voyage  (The  Canada,  Lush.  586). 

Evidence,  however,  that  the  injured  vessel  is  sunk  is  not  of  itself 
sufficient  to  show  that  the  loss  was  total,  nor  is  it  sufficient  to  justify 
the  master  and  owner  in  abandoning  the  vessel  or  the  cargo  unless 
it  appears  that  the  circumstances  were  such  that  the  vessel  could 
not  be  raised  and  saved,  or  that  the  cost  of  raising  and  repairing 
her  would  exceed  or  equal  her  value  after  the  repairs  were  made. 

Experience  shows  that  in  many  cases  where  the  injured  ves- 
sel is  sunk,  especially  when  the  disaster  happens  in  rivers  or  har- 
bors, the  vessel  may  be  raised  at  moderate  expense,  and  that  the 
cargo,  if  not  perishable,  may  be  saved  and  restored  to  the  shipper, 
or  carried  forward  to  the  port  of  destination,  and  the  rule  in  such 
cases  is  to  award  such  damages  only  as  will  compensate  the  owners 
for  the  loss  incurred,  which  is  held  to  include  the  expense  of  raising 
the  vessel  and  putting  her  in  repair,  with  a  proper  allowance  for  the 
loss  of  freight  and  for  the  damage  to  the  cargo,  and  for  the  deten- 
tion of  the  vessel  during  the  time  necessary  to  make  the  repairs  and 
fit  the  vessel  to  resume  her  voyage  (Williamson  v.  Barrett,  13  How. 
110;  Sturgis  v.  Clough,  1  Wall.  272). 

Justice  as  well  as  sound  policy  forbids  that  the  owner  of  a  ves- 


788  COLLISION. 

sel  sunk  by  collision  should  be  allowed  to  recover  the  full  value  of 
the  vessel  and  cargo  except  in  cases  where  the  entire  property  is  lost 
by  the  disaster,  which  is  not  true  in  a  case  where,  by  reasonable 
exertions,  the  vessel  may  be  raised  and  the  cargo  saved  by  the  use 
of  such  nautical  skill  as  the  owners  of  vessels  usually  employ  in 
such  emergencies.  Owners  of  vessels  seeking  redress  in  such  cases 
must  be  prepared  to  show,  not  only  that  those  in  charge  of  the 
other  vessel  were  in  fault,  but  that  no  negligence  on  their  part  has 
increased  or  aggravated  the  injury.  Damages  are  awarded  in  such 
cases  for  the  injury  done  to  the  vessel  and  cargo  by  a  wrongful  act, 
but  if  the  party  suffering  the  injury  to  his  property  will  not  employ 
any  reasonable  measures  to  stop  the  progress  of  the  damage,  but 
wilfully  and  obstinately,  or  through  gross  negligence,  suffers  the 
damage  to  augment,  it  is  his  own  folly,  and  the  law  will  not  afford 
him  any  redress  for  such  part  of  the  damage  as  proceeded  directly 
from  his  own  culpable  default. 

Persons  injured  in  their  property  by  collision  are  entitled  to  full 
indemnity  for  their  loss,  but  the  respondents  are  not  liable  for  such 
damages  as  might  have  been  reasonably  avoided  by  the  exercise  of 
ordinary  skill  and  diligence,  after  the  collision,  on  the  part  of  those 
in  charge  of  the  injured  ship  (The  Flying-Fish,  B.  &  Lush.  443 ; 
s.  c.  3  Moore  Privy  Council  [N.  S.]  86  ;  The  Lotus,  Holt  R.  K.  183  ; 
The  Lena,  lb.  213). 

Responsive  to  these  views,  the  suggestion  is,  that  the  libel  alleges 
that  the  schooner  and  cargo  were  sunk  in  such  deep  water  as  to  make 
both  a  total  loss,  but  the  insuperable  difficulty  in  the  way  of  that 
suggestion  is,  that  the  allegation  of  the  libel  is  expressly  denied 
in  the  answer,  and  the  libellants  failed  to  introduce  any  proof  to 
support  their  allegation.  Subsequent  to  the  disaster  several  wit- 
nesses saw  the  schooner,  and  they  concur  that  her  masts  were  some 
eighteen  feet  out  of  water,  and  that  she  lay  with  her  stem  to  the 
west-northwest,  in  the  exact  course  in  which  she  was  steering  when 
she  was  sunk  by  the  steamer.  Theory  of  the  libellants  is,  that  the 
vessel  and  cargo  were  of  no  value,  but  the  court  cannot  adopt  that 
theory  in  the  absence  of  any  proof  to  warrant  the  conclusion  (Mil- 
ler v.  Mariner's  Church,  7  Me.  51  ;  Loker  v.  Damon,  17  Pick.  284 ; 
Thompson  v.  Shattuck,  2  Mete.  615  ;  Sedgwick  on  Damages  [4th  ed.] 
105). 

Decided  cases  may  be  found  where  it  is  held  that  the  owner  of 
the  injured  vessel  is  not  bound  to  raise  the  vessel  in  a  case  where 
she  was  sunk  by  a  collision,  but  it  is  clear  that  the  court  cannot 
award  damages  for  a  total  loss,  where  it  appears  probable  that  the 


THE   SAPPHIRE.  789 

vessel  and  cargo  may  be  raised  without  much  expense,  and  restored 
to  their  owners  (The  Columbus,  3  W.  Robinson,  158  ;  The  Eugenie, 
1  Lush.  139  ;  Lowndes  on  Collision,  148). 

The  remainder  of  the  opinion  related  to  the  allowance  to  the 
the  libellants,  by  the  commissioner,  of  $500  for  counsel  fees.  This 
allowance  was  disapproved,  the  court  holding  that  attorneys,  solicit- 
ors and  proctors  can  tax  nothing  as  costs  in  a  cause  of  admiralty 
and  maritime  jurisdiction  against  the  opposite  party,  except  the  fees 
and  costs  regulated  by  the  act  of  February  26,  1S53. 

Decree  reversed. 


Collision  ;  Division  or  Loss ;    Cross-Libel  ;   Proof  of  Damage  to 

Claimants  ;  Costs. 


SUPREME    COURT,    UNITED    STATES. 

[1873.]  The  Sapphire  (18  Wall.  51). 

The  rule  in  admiralty  that  where  both  vessels  are  in  fault,  the  sums  representing  the 
damage  sustained  by  each  must  be  added  together,  and  the  aggregate  divided  be- 
tween the  two,  is  of  course  applicable  only  where  it  appears  that  both  vessels  have 
been  injured. 

And  although  a  cross-libel  may  not  always  be  necessary  in  such  case,  in  order  to  enable 
the  owners  of  the  vessel  libelled  to  set  off  or  recoup  the  damages  sustained  by  such 
vessel,  if  both  it  and  the  other  vessel  be  found  in  fault,  yet  if  it  be  meant  to  set  off 
or  recoup  such  damages,  it  ought  to  appear  in  some  way  that  the  libelled  vessel  was 
injured,  and  if  such  injury  is  not  alleged  by  a  cross-libel,  it  may  well  be  questioned 
whether  it  ought  not  to  appear  in  the  answer. 

At  all  events,  where,  in  neither  the  District  nor  in  the  Circuit  Court,  the  libellee  has  set 
up  an  allegation  that  there  were  other  damages  sustained  than  those  which  the  libel- 
lant  alleged  had  been  sustained  by  his  vessel,  the  libellee  cannot  make  a  claim  ia  this 
court  for  damages  which  he  alleges  here,  for  the  first  time,  have  been  sustained  also 
by  him. 

Accordingly,  where  a  decree  in  the  Circuit  Court  which,  assuming  that  the  fault  in  a 
collision  case  was  with  the  libelled  vessel  alone,  gave  -$15,000  damages  to  the  libellant, 
was  reversed  in  this  court,  which  held  "  that  both  vessels  were  in  fault,  and  that  the 
damages  ought  to  be  equally  divided;"  and  remanded  the  case  with  a  mandate, 
directing  that  a  decree  should  be  entered  "in  conformity  with  this  opinion," — held, 
there  having  been  no  allegation  in  any  pleadings,  nor  any  proofs  that  the  libelled 
vessel  had  sustained  injury,  that  a  decree  was  rightly  entered  against  her  for 
•$7,500. 

The  libellant,  in  such  a  case,  held  entitled  to  his  costs  in  the  District  and  Circuit  Court 
as  given  originally  in  those  courts ;  deducting  from  them  the  costs  of  the  appellant 
on  reversal ;  the  matter  of  costs  in  admiralty  being  wholly  under  the  control  of  the 
court  tnvino;  them. 


790  COLLISION". 

Appeal  from  the  Circuit  Court  for  the  District  of  California. 

In  December,  1867,  in  the  District  Court  of  California,  the  Em- 
peror of  the  French,  Napoleon  III,  filed  a  libel  in  the  admiralty 
against  the  ship  Sapphire,  averring  that  shortly  before,  a  collision  had 
occurred  between  the  Euryale,  a  vessel  belonging  to  the  French  gov- 
ernment, and  the  Sapphire,  by  which  the  former  was  damaged  to  the 
extent  of  $15,000;  that  the  collision  was  occasioned  wholly  by  the 
negligence  and  inattention,  and  want  of  proper  care  and  skill  on  the 
part  of  the  ship  Sapphire,  her  master  and  crew,  and  not  from  any 
fault,  omission,  or  neglect  on  the  part  of  the  Euryale,  her  master  and 
crew. 

The  owners  of  the  Sapphire,  in  their  answer,  admitting  the  col- 
lision, denied  that  it  had  been  caused  by  the  fault  of  those  on  board 
the  Sapphire ;  and  averred  that  the  Sapphire  had  her  full  complement 
of  men  and  officers  on  board,  was  fully  and  properly  manned  and 
equipped  ;  that  the  officers  and  crew,  before  and  at  the  time  of  the 
collision,  were  on  deck,  ready  to  adopt  and  use  any  and  all  measures 
to  prevent  any  danger  or  accident  happening  to  her;  and  they  averred 
that,  on  the  contrary,  the  Euryale  ran  into  and  collided  with  the  Sap- 
phire, without  any  fault  or  negligence  on  the  part  of  the  officers,  or 
any  of  them,  or  the  crew,  or  any  of  them,  of  the  Sapphire  ;  that  what- 
ever damage  was  done  to  the  Euryale  or  the  Sapphire  was  occasioned 
solely  and  exclusively  by  reason  of  the  fault  and  negligence  of  the 
officers  of  the  Euryale.  Wherefore  they  prayed  that  the  court  would 
pronounce  against  the  libel,  and  condemn  the  libellant  in  costs,  and 
otherwise  law  and  justice  administer  in  the  premises. 

No  cross-libel  was  filed,  and  the  answer  made  no  averment  that 
any  injury  had  been  sustained  by  the  Sapphire. 

Upon  the  pleadings,  as  thus  described,  the  case  went  to  trial,  and 
decree  was  that  the  libellant  recover  the  amount  of  his  damages  sus- 
tained by  him  in  consequence  of  the  collision  described  in  his  libel. 
A  commissioner  was  then  appointed  to  ascertain  and  compute  the 
amount  of  the  damages  due  to  the  libellant,  and  to  make  report  to  the 
court.  Subsequently  that  commissioner  reported  the  amount  of  those 
damages  to  be  $16,474  ;  whereupon  the  court  decreed  that  the  claim- 
ants and  owners  of  the  Sapphire  pay  to  the  libellant  the  sum  of 
$15,000,  a  part  of  the  sum  thus  reported,  and  the  amount  claimed  in 
the  libel. 

This  decree  was  affirmed  in  the  Circuit  Court,  and  the  case  being 
brought  here  for  review,  this  court  was  of  the  opinion  that  "  both 
parties  were  in  fault,  and  that  the  damages  ought  to  be  equally  divided 
between  them ; "  and  sent  down  a  mandate  directing  that  a  decree 


THE   SAPPHIRE.  791 

should  be  entered  "  in  conformity  with  this  opinion  "  (11  Wallace, 
164). 

The  Circuit  Court  thereupon  reversed  its  prior  decision,  and  de- 
creed that  the  libellant  recover  against  the  Sapphire  and  her  claimants 
the  sum  of  $7,500,  the  same  being  one-half  of  the  damages  decreed 
by  this  court  in  favor  of  the  libellant  and  against  the  claimants.  It 
further  decreed  that  the  libellant  recover  against  the  ship  the  costs  in 
the  District  Court,  taxed  at  $115  50,  together  with  his  costs  in  the 
Circuit  Court,  taxed  at  $299  70,  amounting  in  all  $415  20,  less  the 
sum  of  $137  43,  costs  of  the  claimants  expended  in  the  prosecution 
of  their  appeal  to  the  Supreme  Court  of  the  United  States.  From 
this  decree  the  owners  of  the  Sapphire  again  appealed  to  this  court, 
alleging  that  this  last  decree  also  of  the  Circuit  Court  was  erroneous, 
and  did  not  conform  to  the  mandate : 

First.  In  that  it  decreed  in  favor  of  the  libellant  for  $7,500,  being 
one-half  of  $15,000,  the  sum  previously  awarded  to  the  libellant.  by 
the  Circuit  Court,  as  and  for  damage  sustained  by  the  libellant  as  owner 
of  the  Euryale,  without  taking  into  consideration  the  damage  sustained 
by  the  Sapphire. 

Second.  In  that  the  Circuit  Court  did  not  ascertain  the  amount 
of  damage  which  had  been  sustained  by  the  Sapphire,  without  which 
ascertainment  the  court  could  not  divide  the  damages  sustained  by  the 
two  vessels  equally  between  them. 

Third.  In  that  it  allowed  the  libellant  his  costs  in  the  District  and 
in  the  Circuit  Courts,  to  which  he  was  not  entitled. 

Fourth.  In  that  it  did  not  enter  a  decree  in  favor  of  the  claimants 
for  $137  43,  the  costs  allowed  them  by  the  Supreme  Court,  and  in  de- 
ducting this  amount  from  the  costs  allowed  the  libellant. 

Mr.  Justice  Stkoxg  delivered  the  opinion  of  the  court. 

The  question  now  presented  is,  whether  the  new  decree  which 
the  Circuit  Court  has  made  conforms  to  our  mandate.  Our  mandate 
was  not  an  order  to  take  further  proceedings  in  the  case,  in  conform- 
ity with  the  opinion  of  this  court  (as  was  directed  in  The  Schooner 
Catharine,  17  Howard,  170),  or  to  adjust  the  loss  upon  the  principles 
stated  in  our  opinion  (as  was  directed  in  Cushing  et  al.  v.  Owners  of 
the  Ship  John  Frazer  et  al.,  21  Id.  184;  see  also  Rogers  v.  Steamer 
St.  Charles,  19  Id.  108) ;  but  it  was  specially  to  enter  a  decree  in  con- 
formity with  the  opinion  of  this  court.  Of  what  damages  did  we 
order  an  equal  division  ?  There  were  no  others  asserted  or  claimed 
than  those  sustained  by  the  libellant.  "We  do  not  say  that  a  cross- 
libel  is  always  necessary  in  a  case  of  collision  in  order  to  enable 
claimants  of  an  offending  vessel  to  set  off  or  recoup  the  damages  sus- 


702  COLLISION. 

tained  by  such  vessels,  if  both  be  found  in  fault.  It  may,  however, 
well  be  questioned  whether  it  ought  not  to  appear  in  the  answer  that 
there  were  such  damages.  It  is  undoubtedly  the  rule  in  admiralty 
that  where  both  vessels  are  in  fault,  the  sums  representing  the  dam- 
age sustained  by  each  must  be  added  together,  and  the  aggregate 
divided  between  the  two.  This  is  in  effect  deducting  the  lesser  from 
the  greater,  and  dividing  the  remainder.  But  this  rule  is  applicable 
only  where  it  appears  that  both  vessels  have  been  injured.  If  one  in 
fault  has  sustained  no  injury,  it  is  liable  for  half  the  damages  sus- 
tained by  the  other,  though  that  other  was  also  in  fault.  And,  so  far 
as  the  pleadings  show,  that  is  the  case  now  in  hand.  But  without  de- 
ciding that  the  claimants  of  the  Sapphire  were  not  at  liberty  to  show 
that  their  ship  was  damaged  by  the  collision,  and  to  set  off  those 
damages  against  the  damages  of  the  libellant,  it  must  still,  we  think, 
be  held  they  have  waived  any  such  claim.  If  our  mandate  was  not 
a  direction  to  enter  a  decree  for  one-half  the  damages  of  the  libellant, 
if  its  meaning  was  that  a  decree  should  be  made  dividing  the  aggre- 
gate of  loss  sustained  by  both  vessels,  wdiich  may  be  conceded,  it  was 
the  duty  of  the  respondents  to  assert  and  to  show  that  the  Sapphire 
had  been  injured.  This  they  made  no  attempt  to  do.  When  the 
cause  went  down,  they  neither  asked  to  amend  their  pleadings,  nor 
to  offer  further  proofs,  nor  to  have  a  new  reference  to  a  commissioner. 
So  far  as  the  record  shows,  they  set  up  no  claim,  even  then,  or  at  any 
time  before  the  final  decree,  that  there  were  any  other  damages  than 
those  which  the  libellant  had  sustained.  It  is  not  competent  for  them 
to  make  such  a  claim  first  in  this  court.  "We  cannot  say,  therefore, 
the  court  below  did  not  decree  in  accordance  with  our  mandate. 

The  appellants  further  complain  that  it  was  erroneous  to  allow  the 
libellant  his  costs  in  the  District  and  Circuit  Courts,  deducting  there- 
from the  costs  allowed  them  by  this  court — i.  e.,  the  costs  of  the  re- 
versal of  the  former  decree.  We  do  not  perceive,  however,  in  this 
any  such  error  as  requires  our  interposition.  Costs  in  admiralty  are 
entirely  under  the  control  of  the  court.  They  are  sometimes,  from 
equitable  considerations,  denied  to  the  party  who  recovers  his  demand, 
and  they  are  sometimes  given  to  a  libellant  who  fails  to  recover  any- 
thing, when  he  was  misled  to  commence  the  suit  by  the  act  of  the 
other  party  (Benedict's  Admiralty,  §  549).  Doubtless  they  generally 
follow  the  decree,  but  circumstances  of  equity,  of  hardship,  of  op- 
pression, or  of  negligence,  induce  the  court  to  depart  from  that  rule 
in  a  great  variety  of  cases  (Id.  §  549).  In  the  present  case,  the  costs 
allowed  to  the  libellant  were  incurred  by  him  in  his  effort  to  recover 


DALTOX   v.   THE   SOUTH-EASTERN   RAILWAY   CO.  703 

what  has  been  proved  to  be  a  just  demand,  and  a  denial  of  them, 
under  the  circumstances  of  the  case,  would,  we  think,  be  in- 
equitable. 

Decree  affirmed. 

Xote  — Where  a  collision  occurs  from  the  fault  of  both  vessels,  and  damage 
is  thereby  done  to  an  innocent  party  as  the  owner  of  the  cargo  of  either,  or  to  a 
vessel  in  tow  without  fault,  a  decree  should  be  rendered  not  against  both  vessels 
in  solido,  for  the  entire  damage,  interest,  and  costs,  but  against  each  for  a  moiety 
thereof,  so  far  as  the  stipulated  value  extends;  and  it  should  provide  that  any 
balance  of  such  moiety,  over  and  above  such  stipulated  value  of  either  vessel,  or 
which  the  libelhint  shall  be  unable  to  collect  or  enforce,  shall  be  paid  by  the 
other  vessel,  to  the  extent  of  her  stipulated  value  beyond  the  moiety  clue  from 
her.   The  "  Alabama  "  and  the  "  Gamecock,"  92  U.  S.  E.  S.  C.  (2  Otto),  695  (1875). 

In  an  action  for  damages  occasioned  by  a  collision,  the  cost  of  the  repairs,  the 
rental  value  of  the  vessel  while  undergoing  them,  and  interest  on  both  items,  are 
proper  allowances  as  damages.  Mailler  v.  The  Express  Propeller  Line,  61  N.  Y. 
312  (1874). 

In  a  cause  of  collision,  the  measure  of  compensation  shall  be  equal  to  the 
amount  of  injury  received,  and  shall  be  calculated  on  the  principle  that  the  suf- 
ferer is  entitled  to  complete  indemnification,  without  any  deduction  for  new  ma- 
terials used  in  making  repairs,  as  in  marine  insurance;  nor  is  the  guilty  party  en- 
titled to  deduct  from  the  damages  any  sum  which  the  libellant  has  received  from 
an  underwriter  on  account  of  his  severe  injury.  The  "Atlas"  (3  Otto),  93  U.  S. 
R.  S.  C.  302  (1876). 

"  The  expenses  of  the  plaintiff  necessarily  incurred  in  retaining  his  crew  after 
the  collision,  and  in  attempting  to  sive  the  cargo,  are  proper  items  of  damage." 
Hoffman  v.  Union  Ferry  Company,  68  N.  Y.  385  (1877). 


ACTIONS  ALLOWED  BY  STATUTE  FOE 
INJURIES  CAUSING  DEATH. 


Court  or  Common   Pleas. 

[1858.]     Dalton  v.  The  South-Eastekn  Railway  Co.  (4  C.  B. 
K  S.  296  ;  27  L.  T.  E.  C.  P.  227  ;  4  Jur.  lsT.  S.  711). 

In  an  action  founded  upon  Lord  Campbell's  Act,  9  &  10  Yict.  c.  93,  for  injury  resulting 
from  death,  legal  liability  alone  is  not  the  test  of  injury  in  respect  of  which  damagi  s 
may  be  recovered ;  but  the  reasonable  expectation  of  pecuniary  advantage  by  the 
relation  remaining  alive  may  be  taken  into  account  by  the  jury;  and  damages  may 
be  given  in  respect  of  that  expectation  being  disappointed,  and  the  probable  pecu- 
niary loss  thereby  occasioned. 

Therefore,  in  an  action  by  a  father  for  injury  resulting  from  the  death  of  his  son  through 
the  negligence  of  the  servants  of  a  railway  company,  it  appeared  that  the  son,  who 


794  INJURIES   CAUSING   DEATH. 

was  twenty-seven  years  of  age,  and  unmarried,  but  living  away  from  his  parents,  had  for 
the  last  seven  or  eight  years  been  in  the  habit  of  visiting  them  once  a  fortnight,  and 
of  taking  them  on  those  occasions  presents  of  tea,  sugar,  and  other  provisions,  besides 
money,  amounting  in  the  whole  to  about  20/.  a  year:  Held,  that  the  jury  were  war- 
ranted in  inferring  that  the  father  had  such  a  reasonable  expectation  of  pecuniary 
benefit  from  the  continuance  of  his  son's  life  as  to  entitle  him  to  recover  damages 
under  the  statute. 
But  held,  that  it  was  not  competent  to  the  jury  to  award  him  compensation  for  the  ex- 
penses incurred  by  him  for  his  son's  funeral  or  for  family  mourning. 

This  was  an  action  brought  by  the  plaintiff,  as  administrator  of 
his  deceased  son,  to  recover  damages  under  Lord  Campbell's  Act, 
9  &  10  Vict.  c.  93,  by  reason  of  the  deceased  having  been  accident- 
ally killed  through  the  negligence  of  the  defendants'  servants. 

The  cause  was  tried  before  Byles,  J.,  at  the  sittings  in  Middle- 
sex after  last  Hilary  Term. 

It  was  admitted  on  the  part  of  the  defendants  that  the  death  of 
Thomas  Dalton  was  the  consequence  of  negligence  on  the  part  of 
their  servants,  and  that  that  negligence  was  of  such  a  character  as 
would  have  enabled  the  deceased  himself  to  recover  damages  for  any 
injury  short  of  death  which  might  have  resulted  to  him  thereby ; 
but  it  was  insisted  that  the  plaintiff  and  his  wife  had  sustained  no 
such  injury  by  the  death  of  their  son  as  to  enable  them  to  maintain 
an  action  under  the  statute. 

As  to  this  the  facts  were  these :  The  deceased,  who  was  about 
twenty-seven  years  of  age,  and  unmarried,  resided  in  London,  where 
he  worked  as  a  pianoforte  maker,  earning  about  SI.  a  week.  For  the 
last  seven  or  eight  years  he  had  been  in  the  habit  of  visiting  his 
father  and  mother,  laboring  people  at  Dartford,  once  a  fortnight,  and 
on  these  occasions  took  them  presents  of  tea,  coffee,  sugar,  meat, 
A:c,  which  with  occasional  donations  of  money  averaged  about  201. 
a  year. 

On  the  part  of  the  company,  it  was  submitted,  that,  under  this 
statute,  the  plaintiff  could  only  recover  in  respect  of  the  loss  of  some 
legal  right.  On  the  other  hand,  it  was  submitted  that  it  was  enough 
that  the  plaintiff  should  have  had  a  reasonable  expectation  of  a  con- 
tinuance of  pecuniary  advantage  from  the  remaining  alive  of  his 
son ;  and,  in  addition  to  compensation  for  that  loss,  the  plaintiff 
claimed  101.  which  he  had  expended  upon  his  son's  funeral,  and  also 
the  cost  of  providing  himself  and  wife  with  mourning. 

The  learned  judge  told  the  jury,  that,  in  his  opinion,  the  plaintiff 
and  his  wife  had  •  sustained  such  a  pecuniary  injury  from  the  death 
of  their  son  as  to  entitle  them  to  recover  damages  under  the  statute  ; 
and  he  directed  them  to  find  separately  the  sums  they  thought  the 


DALTON  v.   THE   SOUTH-EASTERN   RAILWAY   CO.  ?95 

plaintiff  entitled  to  in  respect  of  the  mourning  and  tlie  funeral  ex- 
penses. 

The  jury  accordingly  returned  a  verdict  for  the  plaintiff — assess- 
ing the  damages  as  follows :  SOI.  for  the  plaintiff,  and  101.  for  his 
wife,  in  respect  of  the  pecuniary  loss  sustained  by  their  son's  death ; 
101.  for  the  funeral ;  and  151.  for  mourning;  and  leave  was  reserved 
to  the  defendants  to  move  to  enter  a  nonsuit,  if  the  court  should  be 
of  opinion  that  there  was  no  evidence  of  such  damage  as  would  en- 
title the  plaintiff  to  maintain  an  action  under  the  statute,  or  to  re- 
duce the  damages  by  deducting  the  sums  allowed  for  funeral  ex- 
penses and  mourning. 

Willes,  J.,  now  delivered  the  judgment  of  the  court : 

The  great  question  in  this  case  is  disposed  of  by  the  judgment  of 
the  Court  of  Exchequer,  in  Franklin  v.  The  South-Eastern  Eailway 
Company,  3  Hurlst.  &  N.  211,  by  which  it  is  decided,  with  our  en- 
tire concurrence,  that  legal  liability  alone  is  not  the  test  of  injury  in 
respect  of  which  damages  may  be  recovered  under  Lord  Campbell's 
Act,  9  &  10  Yict.  c.  93  ;  but  that  the  reasonable  expectation  of  pecu- 
niary advantage  by  the  relation  remaining  alive  may  he  taken  into 
account  by  the  jury,  and  damages  may  be  given  in  respect  of  that 
expectation  being  disappointed,  and  the  probable  pecuniary  loss 
thereby  occasioned.* 

In  respect,  therefore,  of  the  sum  of  120/.,  given  as  damages  upon 
that  footing,  the  verdict  must  stand. 

As  to  the  expenses  of  the  funeral  and  mourning,  however,  we 
think  they  ought  not  to  be  allowed.  The  subject-matter  of  the 
statute,  is,  compensation  for  injury  by  reason  of  the  relative  not 
being  alive :  and  there  is  no  language  in  the  statute  referring  to  the 

*  Pollock,  C.  B.  in  giving  the  judgment  of  the  court  in  that  case,  says:  "The  statute 
does  not  in  terms  say  on  what  principle  the  action  it  gives  is  to  be  maintainable,  nor 
on  what  principle  the  damages  are  to  be  assessed;  and  the  only  way  to  ascertain  what 
it  does  is  to  show  what  it  does  not  mean.  Now,  it  is  clear  that  damage  must  be  shown, 
for,  the  jury  are  to  'give  such  damages  as  they  think  proportioned  to  the  injury.'  It  has 
been  held  that  these  damages  are  not  to  be  given  as  a  solatium,  but  are  to  be  given  in 
reference  to  a  pecuniary  loss.  That  was  so  decided  for  the  first  time  iu  banc,  iu  Blake  v. 
The  Midland  Railway  Company,  18  Q.  B.  93  (E.  C.  L.  R.  vol.  83).  It  is  also  clear  that 
the  damages  are  not  to  be  given  merely  in  reference  to  the  loss  of  a  legal  right,  for,  they 
are  to  be  distributed  among  relations  only,  and  not  to  all  individuals  sustaining  such  a 
loss;  and  accordingly  the  practice  has  not  been  to  ascertain  what  benefit  could  have  been 
enforced  by  the  claimants  had  the  deceased  lived,  and  give  damages  limited  thereby.  If, 
then,  the  damages  are  not  to  be  calculated  on  either  of  these  principles,  nothing  remains 
except  that  they  should  be  calculated  in  reference  to  a  reasonable  expectation  of  pecu- 
niary benefit,  as  of  right  or  otherwise,  from  the  continuance  of  the  life." 


*J9Q  INJURIES   CAUSING   DEATH. 

cost  of  tlie  ceremonial  of  respect  paid  to  the  memory  "of  the  deceased 
in  his  funeral,  or  in  putting  on  mourning  for  his  loss. 

The  rule  must,  therefore,  he  absolute  to  reduce  the  verdict  by 
those  expenses,  and  discharged  as  to  the  residue. 

Rule  accordingly. 


Action  foe  Death  by  Negligence  ;  Prospective  Loss ;  Pecuniary 
Value  of  a  Mother's  Care. 


COURT    OF    APPEALS,    NEW    YORK. 

[1864.]    Tilley,   Admr.,   v.   The  Hudson   River  R.  R.  Co. 

(29  N.  Y.  252). 

In  an  action  bya  father,  as  administrator  of  his  wife,  who  was  killed  by  the  negligence 
of  the  defendants,  it  is  not  improper  for  the  judge  to  charge  the  jury  that,  in  esti- 
mating the  pecuniary  injury,  they  may  take  into  consideration  the  nurture,  instruc- 
tion, and  physical,  moral  and  intellectual  training  which  the  mother  gave  to  the 
children. 

Such  a  charge  does  not  imply  that  the  children  are  necessarily  and  inevitably  subjected 
to  such  a  loss,  but  leaves  it  to  the  jury  to  determine  whether  any  such  loss  has  been 
in  fact  sustained,  and,  if  so,  the  amount  of  the  loss. 

There  is  no  sufficient  legal  reason  for  limiting  the  damages,  in  such  an  action,  to  the 
minority  of  the  children,  if  the  jury  are  legally  persuaded  they  will  continue  after 
that  age. 

It  is  not  erroneous  to  instruct  the  jury,  in  such  a  case,  that  while  they  must  assess  the 
damages  with  reference  to  the  pecuniary  injuries  sustained  by  the  next  of  kin  in 
consequence  of  the  death  of  the  mother,  they  are  not  limited  to  the  losses  actually 
sustained  at  the  precise  period  of  her  death,  but  may  include,  also,  prospective 
losses,  provided  they  are  such  as  the  jury  believe,  from  the  evidence,  will  actually 
result  to  the  next  of  kin  as  the  proximate  damages  arising  from  the  wrongful  death. 

In  such  an  action  evidence  in  relation  to  the  capacity  of  the  mother  to  conduct  business 
and  make  money,  is  proper,  as  aiding  the  jury  in  arriving  at  a  correct  result  in  re- 
gard to  the  pecuniary  benefit  which  the  mother  was  to  her  children,  and  her  capacity 
to  bestow  such  training,  instruction  and  education  as  would  be  pecuniarily  service- 
able to  the  children  in  after  life. 

Appeal  by  the  defendant  from  a  judgment  of  the  Supreme  Court 
rendered  in  the  Third  District  in  favor  of  the  plaintiff. 

The  action  was  brought  by  the  plaintiff,  as  administrator  of  his 
wife,  to  recover  damages  sustained  by  her  death  from  injuries  alleged 
to  have  been  caused  by  the  negligence  of  the  defendant.  The  cause 
has  been  twice  tried.  The  judgment  rendered  in  favor  of  the  plain- 
tiff  on  the  first  trial  was  reversed  by  this  court  and  a  new  trial 


TILLEY   v.   THE   HUDSON   R.  R.  R.  CO.  797 

ordered  (24  X:  Y.  R.  471).  A  second  trial  was  had  before  Mr. 
Justice  Hogeboom  and  a  jury  at  the  Rensselaer  circuit  in  December, 
1802,  and  the  plaintiff  recovered  a  verdict.  jSro  question  was  made 
but  that  the  death  of  the  plaintiff's  intestate  was  caused  by  the  neg- 
ligence of  the  defendant.  The  only  questions  made  by  the  defend- 
ant related  to  the  rule  of  damages.  The  injury  which  caused  the 
death  happened  on  the  18th  of  January,  1860,  near  Sing  Sing,  by  a 
collision  of  trains  on  the  defendant's  road,  in  one  of  which  the  de- 
ceased was  a  passenger.  It  appeared  that  prior  to  her  death  the  plain- 
tiff, who  was  a  carpenter  by  trade,  resided  with  his  wife  and  family 
in  the  town  of  Grafton,  in  the  county  of  Rensselaer.  The  deceased, 
at  the  time  of  her  death,  was  48  years  of  age — the  plaintiff  about  50  ; 
and  there  were  five  children,  the  oldest  23  and  married,  the  next  21, 
one  17,  one  11,  and  one  9  years  of  age.  To  the  admission  of  evi- 
dence of  the  plaintiff's  occupation  the  defendant  excepted.  The 
plaintiff  was  also  allowed  to  show,  under  the  objection  and  exception 
of  the  counsel  for  the  defendant,  that  the  deceased  carried  on  the 
shirt  and  bosom  making  business.  That  she  also  attended  to  her 
household  affairs ;  that  she  instructed  her  children  and  sent  them  to 
school,  instructed  them  in  domestic  affairs,  nursed  them  in  sickness, 
was  a  member  of  the  Baptist  church,  the  superintendent  of  a  Sunday- 
school,  and  frequently  took  part  in  the  exercises  of  the  church,  and 
addressed  and  exhorted  at  meetings.  The  judge,  among  other  things, 
instructed  the  jury  that  in  estimating  the  damages  they  had  a  right 
to  consider  the  loss  which  the  children  had  sustained  in  reference  to 
their  mother's  nurture,  intellectual,  moral,  and  physical  training,  and 
of  such  instruction  as  can  only  proceed  from  a  mother,  and  as  they 
would  otherwise  have  required  at  her  hands.  That  they  were  not  at 
liberty  to  speculate  upon  the  probabilities  of  their  loss  being  wholly 
or  partially  supplied  by  their  father's  exertions,  or  by  his  second 
marriage,  or  from  any  other  source,  and  make  an  allowance  to  the  de- 
fendant by  way  of  deduction  from  the  damages  on  that  account. 
That  in  estimating  the  pecuniary  damages  the  jury  should  consider 
the  age  of  the  mother,  her  physical  and  mental  capabilities,  her 
capacity  for  business,  the  ages  of  her  children,  and  the  fact  that  at 
the  time  of  her  decease  she  and  her  children  were  residing  together 
as  a  family.  That  the  damages  were  to  be  assessed  with  reference  to 
the  pecuniary  injuries  sustained  by  the  next  of  kin  on  account  of  the 
death,  and  they  are  not  confined  to  the  actual  present  loss,  which 
could  be  proved,  but  prospective  loss  also,  provided  the  prospective 
loss  is  such  as  the  jury  believe,  from  the  evidence,  will  actually  result 
to  the  next  of  kin  as  the  proximate  damages  arising  from  the  wrong- 


79S  INJURIES   CAUSING   DEATH. 

ful  death.  That  the  injuries  to  the  children  by  the  death  of  the 
mother  is  a  legitimate  ground  of  damage,  and  that  in  estimating  such 
damages  the  jury  have  a  right  to  consider  the  loss  of  the  children  of 
the  deceased  in  reference  to  such  intellectual,  moral,  and  physical 
training,  and  such  instruction  as  they  would  otherwise  have  received 
at  her  hands.  That  the  jury  had  the  right  to  consider  the  business 
and  other  capabilities  of  the  mother  with  reference  to  her  competency 
to  discharge  her  duties  towards  the  pecuniary  benefit  of  the  children, 
in  her  intellectual,  moral,  and  physical  training  of  the  children.  To 
all  the  foregoing  directions  the  counsel  for  the  defendant  excepted. 
The  judge,  upon  request,  declined  to  charge  that  the  only  damages  the 
jury  could  give  were  those  sustained  by  the  infant  children  of  the 
deceased,  but  instructed  the  jury  that  if,  under  the  evidence,  they 
could  fairly  conclude  that  the  children  at  any  age  would  receive 
pecuniary  benefit  from  the  instruction  and  counsel  of  the  mother, 
they  were  entitled  to  allow  for  it  such  damages  as  would  naturally 
and  proximately  result.  The  judge  also  refused  to  charge  that  no 
damages  could  be  given  for  any  loss  sustained  by  Mrs.  Burdick,  one 
of  the  children,  who  was  of  age  before  the  mother  died.  And  in 
various  forms  the  judge  refused  to  charge  the  jury,  that  in  estimating 
the  damages  they  were  limited  to  such  pecuniary  loss  as  the  children 
would  sustain  during  the  period  of  their  minority,  but  did  instruct 
them  that  in  this  respect  they  were  not  limited  to  any  age,  and,  in 
effect,  that  they  were  at  liberty  to  allow  damages  through  the  whole 
period  of  their  probable  lives;  and  to  all  these  directions  the  defend- 
ant's counsel  excepted.  The  jury  found  for  the  plaintiff  a  verdict  for 
$5,000. 

Hosebdom,  J.  — Whatever  may  be  said  of  the  precise  points  in 
judgment  when  this  case  was  here  upon  a  former  occasion,  it  is  plain 
that  the  judge  on  the  second  trial  charged  the  jury  in  conformity 
with  the  views  presented  in  the  prevailing  opinion  on  the  former  ap- 
peal. Those  views  are  supposed  to  have  received  the  concurrence  and 
approval  of  a  majority  of  the  court,  and  at  all  events  to  have  sug- 
gested themselves  to  the  court  as  probably  sound,  whether  or  not  they 
were  entitled  to  absolute  authority  in  controlling  the  proceedings  on 
the  second  trial.  It  is  not,  perhaps,  well  to  be  unduly  critical  in  con- 
cluding the  parties  by  the  former  decision.  The  questions  now  arise 
and  call  for  direct  and  precise  adjudication  ;  and  as  they  have  been 
fully,  ably  and  learnedly  discussed,  perhaps  no  more  fit  occasion  will 
be  presented  for  a  judicial  exposition  of  the  statute  under  which  these 
proceedings  were  had,  so  far  as  the  same  remains  open  for  examina- 
tion. 


TILLEY   v.   THE   HUDSON   R.  R.  R.  CO.  T99 

Although,  the  briefs  now  presented  are  somewhat  voluminous,  the 
points  are  few  and  are  confined  to  exceptions  to  a  single  species  of 
evidence,  and  to  exceptions  to  the  charge  and  refusals  to  charge. 
They  may  be  ranged  under  the  following  heads  : 

1.  Exceptions  to  the  charge  that  the  jury  might  take  into  con- 
sideration the  nurture,  instruction  and  physical,  moral  and  intellectual 
training  which  the  mother  gave  to  the  children. 

2.  Exceptions  to  the  refusal  of  the  judge  to  restrict  the  damages 
to  the  minority  of  the  children. 

3.  Exceptions  to  the  charge  that  prospective  damages  were  allow- 
able. 

4.  Exceptions  to  the  evidence  of  the  business  capacity  of  the 
mother. 

The  charge  of  the  judge  was  explicit  that  the  damages  must  be 
limited  to  pecuniary  injuries  ;    and  he  said  that  in  estimating  them 
they  had  a  right  to  consider  the  loss  (that  is,  the  pecuniary  loss)  which 
the  children  had  sustained  in  reference  to  their  mother's  nurture  and 
instruction,  and  moral,  physical  and  intellectual  training.     I   think 
this  does  not  imply  that  the  children  are  necessarily  and  inevitably 
subjected  to  such  a  loss,  but  leaves  it  to  the  jury  to  determine  whether 
any  such  loss  has  been  in  fact  sustained,  and  if  so,  the  amount  of  such 
loss.     This  is  the  fair  scope  and  meaning  of  the  charge,  and  if  it  was 
not  sufficiently  explicit,  should  have  been  made  so  by  a  direct  request 
for  such  purpose.     This  understood,  I  regard  it  as   unexceptionable. 
It  is  certainly  possible,  and  not  only  so  but  highly  probable,  that  a 
mother's  nurture,  instruction  and  training,  if  judiciously  administered, 
will  operate  favorably  upon  the  worldly  prospects  and  pecuniary  in- 
terests of  the  child.     The  object  of  such  training  and  education  is 
not  simply  to  prepare  them  for  another  world,  but  to  act  well  their 
part  in  this,  and  to  promote  their  temporal  welfare.     If  they  acquire 
health,  knowledge,  a  sound  bodily  constitution  and  ample  intellectual 
development  under  the  judicious  training  and  discipline  of  a  com- 
petent and  careful  mother,  it  is  very  likely  to  tell  favorably  upon  their 
pecuniary  interests.     These  are  better,  even  in  a  pecuniary  or  merce- 
nary point  of  view,  than  a  feeble  constitution,  impaired  health,  in- 
tellectual ignorance  and  degradation  and  moral  turpitude.     To  sustain 
the  charge,  it  is  enough  that  these  circumstances  might  affect  their 
pecuniary  prospects.     It  was  left  to  the  jury  to  say  whether  in  the 
given  case  they  did  so  or  not,  and  if  so,  to  what  extent.     It  is  no 
answer  to  this  view  to  say  that  wealth  is  sometimes  associated  with  in- 
firm health,  mental  degradation  and  moral  turpitude.     Cases  of  this 
kind  do  occur,  but  they  do  not  make  the  rule,  nor  tend  to  show  that 


800  INJURIES   CAUSING   DEATH. 

the  healthy  growth  and  expansion  of  the  physical,  intellectual  and 
moral  powers  with  which  a  kind  providence  has  endowed  us  do  not 
tend  to  our  worldly  advantage.  I  do  not  understand  from  the  phrase- 
ology of  the  statute  that  an  extremely  nice  and  contracted  interpre- 
tation should.be  put  upon  the  term  "pecuniary  injuries."  A  liberal 
scope  was  designedly  left  for  the  action  of  the  jury.  They  are  to 
give  such  damages  as  they  shall  deem  a  fair  and  just  compensation 
with  reference  to  the  pecuniary  injuries  resulting  from  such  death. 
They  are  not  tied  down  to  any  precise  rule.  Within  the  limit  of  the 
statute  as  to  amount,  and  the  species  of  injury  sustained,  the  matter 
is  to  be  submitted  to  their  sound  judgment  and  sense  of  justice.  They 
must  be  satisfied  that  pecuniary  injuries  resulted.  If  so  satisfied,  they 
are  at  liberty  to  allow  them  from  whatever  source  they  actually  pro- 
ceeded which  could  produce  them.  If  they  are  satisfied  from  the  his- 
tory of  the  family,  or  the  intrinsic  probabilities  of  the  case,  that  they 
were  sustained  by  the  loss  of  bodily  care,  or  intellectual  culture,  or 
moral  training,  which  the  mother  had  before  supplied,  they  are  at 
liberty  to  allow  for  it.  The  statute  has  set  no  bounds  to  the  sources 
of  these  pecuniary  injuries.  If 'the  rule  is  a  dangerous  one,  and  liable 
to  abuse,  the  legislature  and  not  the  courts  must  apply  the  corrective. 
The  charge  is  supposed  to  have  been  particularly  objectionable  be- 
cause it  set  before  the  jury  moral  training  and  culture  as  one  of  the 
sources  of  pecuniary  benefit,  which  the  jury  were  at  liberty  to  con- 
sider. It  would  be  an  effectual  though  technical  answer  to  this  ex- 
ception to  say  that  the  charge  was  not  objected  to  specifically  on  that 
ground,  and  that  if  the  charge  is  sustainable  on  the  score  of  physical 
and  mental  training  supplied  by  the  mother,  it  cannot  be  rejected  as 
erroneous  because  in  the  same  sentence  moral  culture  was  included 
without  a  specific  objection.  But  I  think  it  defensible  on  the  grounds 
already  advanced,  that  moral  culture,  like  bodily  health  and  mental 
developement,  improve  and  perfect  the  man  and  fit  him  not  only  for 
a  more  useful  but  a  more  prosperous  career,  for  worldly  success  as 
well  as  social  consideration.  It  is  not  essential  to  show  that  they  nec- 
essarily result  in  direct  pecuniary  advantage ;  it  is  sufficient  that  they 
may  do  so ;  that  they  often  do  so  ;  that  it  is  possible  and  not  improba- 
ble that  such  may  be  the  result,  and  that,  therefore,  these  items  may 
be  set  forth  and  presented  for  the  consideration  and  deliberation  of 
the  jury,  to  be  disposed  of  as  they  shall  deem  to  be  just.  1  think  the 
exception  is  not  well  taken  if  they  may  possibly  result  in  pecuniary 
benefit  and  do  not  tend  in  a  contrary  direction.  I  concede  these  are 
quite  general  and  to  some  extent  loose  and  indefinite  elements  to  enter 
into  a  safe  and  judicious  estimate  of  actual  pecuniary  damage,  but  I 


TILLEY   v.   THE   HUDSON   K.  R.  R   CO.  801 

am  unable  to  find  in  the  statute  a  restriction  which  shall  confine  it 
within  narrower  limits. 

Nor  do  I  perceive  any  sufficient  legal  reason  for  limiting  the  dam- 
ages to  the  minority  of  the  children  if  the  jury  are  legally  persuaded 
they  would  continue  after  that  age.  It  cannot  be  denied  that  the  de- 
privation of  parental  instruction  and  training  and  discipline,  after, 
that  age,  is  more  or  less  detrimental  to  the  child  in  a  pecuniary  point 
of  view,  and  I  see  no  arbitrary  injunction  in  the  statute  peremptorily 
to  exclude  such  considerations  from  the  jury.  The  judge  seems  to 
have  submitted  this  part  of  the  case  to  the  jury  with  cautious  direc- 
tions. He  instructed  the  jury  that  if  they  could,  under  the  evidence 
fairly  conclude  that  the  children,  at  any  age,  would  receive  pecuniary 
benefit  from  the  instructions  and  counsel  of  the  mother,  they  were 
entitled  to  allow  for  it  such  damages  as  would  naturally  and, proxi- 
mately result.  The  judge  further  charged  that  beyond  the  age  of 
twenty-one  years  the  jury  must  proceed  with  caution,  and  allow  only 
those  damages  which,  under  the  evidence,  they  should  find  would  and 
did  reasonably  and  proximately  result  from  the  death  of  the  mother 
by  the  wrongful  act  of  the  defendants!  He  further  stated  to  the  jury 
that  he  did  not  charge  that  the  jury  must  allow  for  damages  beyond 
twenty-one  years.  Assuming,  as  I  think  we  must,  that  there  is  not, 
either  in  the  statute  or  in  principle,  any  peremptory  injunction  to 
confine  the  damages  absolutely  to  the  minority  of  the  children,  the 
case  seems  to  have  been  put  to  the  jury  on  this  point  with  proper 
limitations. 

Nor  do  I  think  it  was  erroneous  to  instruct  the  jury  that  while 
they  must  assess  the  damages  with  reference  to  the  pecuniary  injuries 
sustained  by  the  next  of  kin  in  consequence  of  the  death  of  Mrs. 
Tilley,  they  were  not  limited  to  the  losses  actually  sustained  at  the 
precise  period  of  her  death,  but  might  include  also  prospective  losses, 
provided  they  were  such  as  the  jury  believed,  from  the  evidence,  would 
actually  result  to  the  next  of  kin  as  the  proximate  damages  arising 
from  the  wrongful  death. 

If  damages  of  the  character  alluded  to,  to  wit:  those  arising  from 
the  deprivation  of  the  training  and  education  which  the  parent  would 
bestow  were  allowable  at  all,  the  loss  which  the  children  would  sus- 
tain by  the  death  must  necessarily  be  such  as  should  arise  from  the 
nurture  and  training  to  be  subsequently  bestowed.  That  which  had 
been  already  given,  and  of  which  the  children  had  already  reaped  the 
benefit,  could  not  be  increased  by  the  continued  life  of  the  parent, 
nor  curtailed  by  her  sudden  death.  The  result  had  been  already  re- 
alized. But  her  sudden  and  wrongful  removal  was 'the  withdrawal — 
51 


802?  INJURIES   CAUSING   DEATH. 

the  permanent  and  p3rpetual  withdrawal — of  a  moral  and  intellectual 
fund  from  which  the  children  were  constantly  deriving  pecuniary 
aliment  and  support.  And  it  is  this  withdrawal  which  formed  the 
basis  of  the  whole  allowance  for  any  damage  arising  from  this  source. 
The  length  of  time  such  benefit  would  have  been  enjoyed  was  left  to 
the  jury,  under  proper  instructions.  They  were  charged  to  find  it 
from  the  evidence  ;  they  were  charged  to  limit  the  recovery  to  such 
damages  as  would  actually  result,  and  to  such  damages  as  were  proxi- 
mate and  not  remote. 

The  only  remaining  question  concerns  the  admission  of  evidence 
in  relation  to  the  capacity  of  the  mother  to  conduct  business  and 
make  money. 

If  the  results  already  announced  rest  on  a  sound  foundation,  then 
this  evidence  was  proper,  as  aiding  the  jury  in  arriving  at  a  proper 
result  in  regard  to  the  pecuniary  benefit  which  the  mother  was  to  her 
children,  and  the  capacity  of  the  mother  to  bestow  such  training,  in- 
struction and  education  as  would  be  pecuniarily  serviceable  to  the  chil- 
dren in  after  life.  It  is  not  denied  that  if  the  mother  had,  by  her  in- 
dustry and  business  capacity,  acquired  a  certain  pecuniary  capital,  the 
amount  of  it  would  be  proper  to  be  proved.  Would  it  be  improper 
to  show  that  it  was  likely  to  be  increased  by  her  industry,  her  econ- 
omy, her  capacity  for  business,  and  her  judicious  conduct  of  business 
affairs  ?  All  these  are  elements  of  pecuniary  success — component 
parts  in  fact  of  that  pecuniary  capital,  of  the  continued  exercises  and 
employment  of  which  the  children  were  entitled  to  the  benefit,  and 
of  which  the  wrongful  act  of  the  defendants  deprived  them.  This 
was  evidence,  moreover,  of  the  circumstances,  situation,  engagements 
and  surroundings  of  the  family,  which  seems  on  general  principles 
always  proper  to  give  with  the  view  of  daguerreotyping  to  the  jury 
the  actual  condition  of  affairs,  which  it  is  so  important  for  them  to 
understand,  the  extent  and  details  of  which  must  generally  be  left  to 
the  sound  discretion  of  the  trial  judge.  It  contains  no  positive  illegal 
element,  and  may  often  be  of  essential  service  in  giving  to  the  jury  a 
practical  view  of  the  case. 

Most  of  the  views  here  presented  are  discussed  and  elaborated  in 
the  opinion  pronounced  when  the  case  was  here  on  a  former  occasion 
(24  IS".  Y.  477),  and  there  pertinency  sustained  by  considerations  more 
direct  and  practical  than  those  which  are  here  urged.  I  refer  to  them 
for  additional  light  on  this  subject.  My  object  here  has  been  mainly 
to  present  some  general  additional  views  which  might  possibly  aid  in 
a  proper  interpretation  of  the  statute  in  question. 

I  think  no  error  was  committed  at  the  trial,  and  that  the  judgment 
of  the  supreme  court  should  be  affirmed. 


RAILROAD   COMPANY   v.   BARRON.  803 

Wright,  Mullin,  Ingraham,  Davii<:s  and  Denio,  Justices,  were 
also  in  favor  of  affirmance.  Johnson,  J.,  was  also  for  affirmance,  on 
the  authority  of  the  former  decision  in  this  case ;  but  if  the  question 
was  open  he  would  agree  with  Selden,  J.,  who  read  an  opinion  for 
reversal,  and  a  new  trial.     Judgment  affirmed. 


SUPREME   COURT,    UNITED    STATES. 


[1366.]    Bailroad  Company  v.  Barron  (5  Wall.  90,  affi'gl 

Bissell,  453). 

When  a  statute — giving  a  right  of  action  to  the  executor  of  a  person  killed  by  such  an 
act  as  would,  if  death  had  not  ensued,  entitled  such  person  to  maintain  an  action  for 
damages — provides,  that  the  amount  recovered  shall  be  for  the  exclusive  benefit  of 
the  widow,  and  next  of  kin.  in  the  proportion  provided  by  law  in  the  distribu'ion  of 
personal  property  left  by  persons  dying  intestate  ;  and  that  "  in  every  such  action 
the  jury  may  give  damages  as  they  shall  deem  a  fair  and  just  c  mpensation  with 
reference  to  pecuniary  injuries  resulting  from  such  death,  <fec,  not  exceeding,  <fcc," 
— it  is  not  necessary  to  the  recovery  that  the  widow  and  next  of  kin  should  have 
had  a  legal  claim  on  the  deceased,  if  he  had  survived,  for  their  support. 

Sembie,  that  statutes  of  this  kind  are  enacted,  as  respects  the  measure  of  damages,  upon 
the  idea  that  as  a  general  fact  the  personal  assets  of  the  deceased  would  take  the 
direction  given  them  by  the  law  governing  the  case  of  intestates.  Hence  any  dam- 
ages given  must,  as  a  general  thing,  be  so  distributed,  even  though  the  party  have 
left  a  will  not  so  devoting  his  property. 

The  damages  in  these  cases  must  depend  very  much  upon  all  the  facts  and  circumstances 
of  the  particular  case.  And  as  when  the  suit  is  brought  by  the  party  himself,  for 
injuries  to  himself,  there  can  be  no  fixed  measure  of  compensation  for  the  pain  and 
anguish  of  body  and  mind,  nor  for  the  loss  of  time  and  care  in  business,  or  the  per- 
manent injury  to  health  and  body,  so  when  it  is  brought  by  the  representative  for 
his  death,  the  pecuniary  injury  resulting  from  the  death  to  the  next  of  kin  is  equally 
uncertain  and  indefinite.  In  the  latter  and  more  difficult  case,  as  in  the  former  one, 
often  difficult  also,  the  result  must  be  left  to  turn  mainly  upon  the  sound  sense  and 
deliberate  judgment  of  the  jury,  applied,  as  above  stated,  to  all  the  facts  and  cir- 
cumstances. 

Error  to  the  Circuit  Court  for  the  Northern  District  of  Illinois, 
the  suit  below  having  been  one  agaiust  a  railroad  company  to  recover 
damages  for  the  death  of  a  passenger  killed  by  its  negligence. 

A  statute  of  Illinois  enacts  : 

"  Sect.  1.  That  whenever  the  death  of  a  person  shall  be  caused 
by  wrongful  act,  neglect,  or  default,  and  the  act,  neglect,  or  default, 
is  such  as  would,  if  death  had  not  ensued,  have  entitled  the  party 
injured  to  maintain  an  action  and  recover  damages  in  respect  thereof, 
then,  and  in  every  sich  case,  the  person  who,  or  company  or  corpora- 


804  INJURIES   CAUS1NU   DEATH. 

tion  which,  would  have  been  liable  if  death  had  not  ensued,  shall  be 
liable  to  an  action  for  damages  notwithstanding  the  death  of  the 
person  injured,  and  although  the  death  shall  have  been  caused  under 
such  circumstances  as  amount  to  felony. 

"  Sect.  2.  Every  such  action  shall  be  brought  by  and  in  the  name 
of  the  personal  representatives  of  such  deceased  person,  and  the 
amount  recovered  in  every  such  action  shall  be  for  the  exclusive 
benefit  of  the  widow  and  next  of  kin  of  such  deceased  person,  and 
shall  be  distributed  to  such  widow  and  next  of  kin,  in  the  proportion 
provided  by  law,  in  relation  to  the  distribution  of  personal  property 
left  by  persons  dying  intestate ;  and  in  every  such  action  the  jury 
may  give  such  damages  as  they  shall  deem  a  fair  and  just  compensa- 
tion with  reference  to  the  pecuniary  injuries  resulting  from  such 
death,  to  the  wife  and  next  of  kin  of  such  deceased  person,  not  ex- 
ceeding the  sum  of  five  thousand  dollars." 

With  this  statute  in  force,  Barron's  executor  brought  a  suit 
against  the  Illinois  Central  Railroad  Company,  to  recover  damages 
for  the  death  of  his  testator,  occasioned  by  the  negligence  of  the 
company  in  conveying  him  as  a  passenger. 

The  deceased  was  killed  while  in  the  act  of  leaving  the  car  in 
obedience  to  the  orders  of  the  conductor,  who  apprehended  an  imme- 
diate collision  with  an  express  train  that  was  coming  up  behind  with 
great  speed,  and  which  struck  the  car  with  such  violence  in  the  rear 
as  to  split  and  drive  it  on  each  side  of  the  baggage  car  in  front.  The 
Illinois  company  owned  the  road,  but  had  granted  or  leased  to  the 
Michigan  Central  Railroad  Company,  of  which  the  express  train  was 
one  of  the  line,  the  privilege  of  running  their  trains  on  this  part  of 
the  road. 

The  testator  was  a  bachelor,  thirty-five  years  old,  and  had  an 
estate  of  about  $35,000,  all  of  which,  as  it  was  stated  in  the  argu- 
ment, he  left  by  his  will  to  his  father.  He  was  an  attorney  by  pro- 
fession, but  for  four  years  prior  to  his  death  had  been  judge  of  the 
county  court  of  Cook  County,  Illinois.  His  term  of  office  having 
then  recently  expired,  he  had  resumed,  or  was  about  to  resume,  the 
practice  of  his  profession,  with  a  fair  promise,  as  the  evidence  tended 
to  show,  of  doing  as  well  as  before  he  was  elected  judge.  His  pro- 
fessional income,  prior  to  his  election  as  judge,  had  been  about 
$3,000  per  annum. 

The  plaintiff  was  his  father,  and  he  left  brothers  and  sisters  ;  one 
of  whom  had  formerly  received  some  assistance  from  him  for  sup- 
port. 

The  defendant's  counsel  asked  the  court  to  charge  the  jury  as 
follows : 


RAILROAD  COMPANY  v.  BARRON.  805 

"  1st.  That  the  statute  under  which  the  action  was  brought 
intends  to  give  no  damages  for  the  injury  received  by  the  deceased, 
but  refers  wholly  to  the  pecuniary  loss  which  the  next  of  kin  may  be 
found  to  have  sustained.  That  it  makes  their  pecuniary  loss  the  sole 
measure  of  damages,  and  that  the  satisfaction  of  that  loss  is  therefore 
the  sole  purpose  for  which  an  action  of  this  kind  can  be  instituted, 
there  being  nothing  to  be  allowed  for  bereavem  >nt.  And  that  it  is 
incumbent  on  the  plaintiff,  before  he  can  recover  anything  more 
than  nominal  damages,  to  show  by  the  evidence  that  there  are  per- 
sons in  existence  entitled  to  claim  the  indemnity  given  by  the  law, 
and  that  they  have  sustained  a  pecuniary  loss  justifying  their  claim. 

"  2d.  That  to  entitle  the  plaintiff  to  recover  anything  beyond 
merely  nominal  damages,  the  parties  for  whose  benefit  the  action  is 
brought  must  be  shown  by  the  evidence  to  have  had  at  the  time  of 
the  death  of  Barron  a  legal  interest  in  his  life,  and  that  by  his  death 
they  have  been  deprived  of  something  to  which  they  had  a  legal 
right. 

"  3d.  That  if  the  persons  for  whose  benefit  this  action  is  brought 
have  received  in  consequence  of  the  death  of  said  Barron,  and  out  of 
this  estate  inherited  by  them  from  him,  a  pecuniary  benefit  greater 
than  the  maximum  amount  of  damages  which  could,  under  any  cir- 
cumstances, be  recovered  in  this  action,  then,  as  a  matter  of  law,  they 
have  by  the  death  of  said  Barron  sustained  no  actual  pecuniary  injury 
for  which  compensation  can  be  recovered  in  this  action. 

"4th.  That  if  the  collision  of  the  two  trains  of  cars  in  question, 
and  the  death  resulting  therefrom,  was  occasioned  solely  by  the  care- 
lessness or  default  of  the  persons  in  charge  of  the  express  train,  and 
that  the  defendant  had  no  authority  or  control  over  such  persons,  but 
that  that  they  were  wholly  under  the  authority  and  direction  of  the 
Michigan  Central  Railroad  Company,  then  the  defendant  is  not  liable 
in  this  action,  even  for  nominal  damages." 

But  the  court  refused  so  to  charge  the  jury;  and  charged  as 
follows : 

It  is  contended  by  the  defendant  that,  as  Barron  was  never  mar- 
ried, the  next  of  kin,  being  his  father,  brothers,  and  sisters,  had  no 
claim  on  him  for  support  or  services,  and  therefore  there  could  have 
been  no  pecuniary  loss  to  them  by  his  death. 

We  cannot  adopt  this  construction  of  the  law,  but  charge  you  that 
there  can  be  a  recovery  if  the  deceased  left  no  kin  surviving  him  who 
had  any  legal  claim  on  him  if  living,  for  support. 

The  cause  of  action  is  given  in  the  first  section  of  the  act  in  clear 
and  unmistakable  tenns.     If  the  injured  party,  by  the  common  law, 


806  INJURIES   CAUSING   DEATH. 

had  a  right  to  sue  if  he  had  lived,  then  if  he  dies  his  representatives 
can  bring  an  action. 

Many  individuals  who  lose  their  lives  by  the  fault  of  persons  and 
corporations  are  of  age,  unmarried,  and  have  no  next  of  kin  depend- 
ent on  them  for  support.  We  cannot  suppose  that  the  statute  in- 
tended to  give  the  representatives  of  such  persons  the  right  to  sue  in 
one  section  and  make  that  right  nugatory  in  the  second  section,  by 
depriving  them  of  all  damages. 

The  policy  of  the  law  was  evidently  to  make  common  carriers 
more  circumspect  in  regard  to  the  lives  intrusted  to  their  care.  They 
were  responsible  at  common  law  if  through  their  fault  broken  limbs 
were  the  result,  but  escaped  responsibility  if  death  ensued.  To  rem- 
edy this  evil  and  provide  a  continuing  responsibility,  was  in  the 
opinion  of  the  court,  the  object  of  the  law. 

We  do  not  think  it  requisite  to  prove  present  actual  pecuniary 
loss.  It  can  rarely  be  done.  The  attempt  to  do  it  would  substitute 
the  opinion  of  witnesses  for  the  conclusions  of  the  jury.  The  facts 
proved  will  enable  the  jury  to  decide  on  the  proper  measure  of 
responsibility.  Some  cases  are  harder  than  others,  and  the  law  in- 
tends that  the  jury  shall  discriminate  in  different  cases.  There  is  no 
fixed  measure  of  damages,  and  no  artificial  rule  by  which  the  dam- 
ages in  a  given  case  can  be  computed. 

The  jury  are  not  to  take  in  consideration  the  pain  suffered  by  the 
deceased,  or  the  wounded  feelings  of  surviving  relatives,  and  no 
damages  are  to  be  given  by  way  of  punishment. 

In  this  case  the  next  of  kin  are  the  parties  who  were  interested  in 
the  life  of  the  deceased.  They  were  interested  in  the  further  accu- 
mulations which  he  might  have  added  to  his  estate,  and  which  might 
hereafter  descend  to  them. 

The  jury  have  a  right,  in  estimating  the  amount  of  pecuniary 
injury,  to  take  into  consideration  all  the  circumstances  attending  the 
death  of  Barron — the  relations  between  him  and  his  next  of  kin,  the 
amount  of  his  property,  the  character  of  his  business,  and  the 
prospective  increase  in  wealth  likely  to  accrue  to  a  man  of  his  age 
with  the  business  and  means  which  he  had.  There  is  a  possibility  in 
the  chances  of  business  that  Barron's  estate  might  have  decreased 
rather  than  increased,  and  this  possibility  the  jury  may  consider. 
The  jury  also  have  a  right  to  take  into  consideration  the  contingency 
that  he  might  have  married,  and  his  property  descended  in  another 
channel. 

And  there  may  be  other  circumstances  which  might  affect  the 
question  of  pecuniary  loss,  which  it  is  difficult  for  the  court  to  par- 


RAILROAD   COMPANY   v.   BARRON.  80T 

ticularize,  but  which  will  occur  to  you.  The  intention  of  the  statute 
was  to  give  a  compensation  for  the  pecuniary  loss  which  the  widow 
(if  any)  or  the  next  of  kin  might  sustain  by  the  death  of  the  part}- ; 
and  the  jury  are  to  determine,  as  men  of  experience  and  observation, 
from  the  proof  what  that  loss  is. 

In  order  to  render  a  verdict  for  the  plaintiff  it  is  necessary  that 
the  defendant  should  have  been  in  fault. 

The  Illinois  Central  Railroad  Company  engaged  to  carry  Judge 
Barron  safely  from  Hyde  Park  to  Chicago,  and  as  a  common  carrier 
was  bound  to  the  most  exact  care  and  diligence  required  for  the 
safety  of  passengers.  *  *  *  * 

It  is  not  a  question  which  train  was  mostly  in  fault,  but  whether 
the  train  of  the  defendant  was  in  fault  at  all.  It  is  for  the  jury  to 
say  from  the  evidence  whether  the  employees  of  the  Illinois  Central 
road  used  the  necessary  degree  of  care  and  diligence  in  the  manage- 
ment of  their  train  on  that  morning.  *  *  *  * 

We  understand  that  the  road  on  which  the  accident  occurred 
belonged  to  the  defendants,  and  by  its  charter  was  under  its  sole 
control  to  carry  passengers  and  property,  and  if  it  allowed  the  trains 
of  the  Michigan  Central  to  run  over  it  under  the  management 
of  the  agents  of  the  Michigan  Central,  it  should  be  done  in  such 
a  manner  as  not  to  interfere  with  the  safety  of  the  passengers  of  the 
defendant,  and  as  to  such  passengers  the  fault  of  the  Michigan  Cen- 
tral road  in  running  their  train  is  the  fault  of  the  defendant. 

Yerdict  and  judgment  for  $3,750  damages.  The  case  was  now 
here  on  exceptions  to  the  charge  as  made,  and  on  the  refusal  to 
charge  as  requested. 

Mr.  Justice  Nelson  delivered  the  opinion  of  the  court. 

There  are  only  two  questions  raised  in  the  course  of  the  trial  in 
the  court  below  that  it  is  material  to  notice. 

After  affirming  the  ruling  of  the  court  below,  that  the  defendants 
were  liable,  the  learned  justice  proceeded  as  follows  : 

The  second  question  is,  as  to  the  proper  measure  of  damages. 

The  only  direction  on  this  subject  in  the  statute  is,  that  the  jury 
may  give  such  damages  as  they  shall  deem  a  fair  and  just  compensa- 
tion, regard  being  had  to  the  pecuniary  injuries  resulting  from  the 
death  to  the  wife  or  next  of  kin,  not  to  exceed  live  thousand  dollars. 

The  first  section  gives  the  action  against  the  company  for  the 
wrongful  act,  if  death  happens,  in  cases  where,  if  the  deceased  had 
survived,  a  suit  might  have  been  maintained  by  him.  The  second 
restricts  the  damages  in  respect  both  to  the  principles  which  are  to 
govern  the  jury,  and  the  amount.     They  are  confined  to  the  pecun- 


808  INJURIES   CAUSING   DEATH. 

iary  injuries  resulting  to  the  wife  and  next  of  kin,  whereas  if  the  de- 
ceased had  survived,  a  wider  range  of  inquiry  would  have  been 
admitted.  It  would  have  embraced  personal  suffering  as  well  as 
pecuniary  loss,  and '  there  would  have  been  no  fixed  limitation  as  to 
the  amount. 

The  damages  in  these  cases,  whether  the  suit  is  in  the  name  of  the 
injured  party,  or,  in  case  of  his  death,  under  the  statute,  by  the  legal 
representative,  must  depend  very  much  on  the  good  sense  and  sound 
judgment  of  the  jury  upon  all  the  facts  and  circumstances  of  the 
particular  case.  If  the  suit  is  brought  by  the  party,  there  can  be  no 
fixed  measure  of  compensation  for  the  pain  and  anguish  of  body  and 
mind,  nor  for  the  loss  of  time  and  care  in  business,  or  the  permanent 
injury  to  health  and  body.  So  when  the  suit  is  brought  by  the  rep- 
resentative, the  pecuniary  injury  resulting  from  the  death  to  the  next 
of  kin  is  equally  uncertain  and  indefinite.  If  the  deceased  had  lived, 
they  may  not  have  been  benefited,  and  if  not,  then  no  pecuniary 
injury  could  have  resulted  to  them  from  his  death.  But  the  statute 
in  respect  to  this  measure  of  damages  seems  to  have  been  enacted 
upon  the  idea  that,  as  a  general  fact,  the  personal  assets  of  the  de- 
ceased would  take  the  direction  given  them  by  the  law,  and  hence 
the  amount  recovered  is  to  be  distributed  to  the  wife  and  next  of  kin 
in  the  proportion  provided  for  in  the  distribution  of  personal  prop- 
erty left  by  a  person  dying  intestate.  If  the  person  injured  had  sur- 
vived and  recovered,  he  would  have  added  so  much  to  his  personal 
estate,  which  the  law,  on  his  death,  if  intestate,  would  have  passed 
to  his  wife  and  next  of- kin  ;  in  case  of  his  death  by  the  injury  the 
equivalent  is  given  by  a  suit  in  the  name  of  his  representative. 

There  is  difficulty  in  either  case  in  getting  at  the  pecuniary  loss 
with  precision  or  accuracy,  more  difficulty  in  the  latter  than  in  the 
former,  but  differing  only  in  degree,  and  in  both  cases  the  result 
must  be  left  to  turn  mainly  upon  the  sound  sense  and  deliberate 
judgment  of  the  jury. 

It  has  been  suggested  frequently  in  cases  under  these  acts,  for 
they  are  found  in  several  of  the  States,  and  the  suggestion  is  very 
much  urged  in  this  case,  that  the  widow  and  next  of  kin  are  not  en- 
titled to  recover  any  damages  unless  it  be  shown  they  had  a  legal 
claim  on  the  deceased,  if  he  had  survived,  for  support.  The  two 
sections  of  the  act  taken  together  clearly  negative  any  such  construc- 
tion, as  a  suit  is  given  against  the  wrong-doer  in  every  case  by  the 
representative  for  the  benefit  of  the  widow  and  next  of  kin,  where, 
if  death  had  not  ensued,  the  injured  party  could  have  maintained  the 
suit.     The  only  relation  mentioned   by  the  statute  to  the  deceased 


TELEGRAPHS.  809 

essential  to  the  maintenance  of  this  suit,  is  that  of  widow  or  next  of 
kin  ;  to  say,  they  must  have  a  legal  claim  on  hiin  for  support,  would 
he  an  interpolation  in  the  statute  changing  the  fair  import  of  its 
terms,  and  hence  not  warranted.  This  construction,  we  believe,  has 
been  rejected  by  every  court  before  which  the  question  has  been 
presented.  These  cases  have  frequently  been  before  the  courts  of 
Illinois,  and  the  exposition  of  the  act  given  by  the  learned  judge  in 
the  present  case  is  substantially  in  conformity  with  those  cases. 
(City  of  Chicago  v.  Major,  18  Illinois,  349 ;  Chicago  and  Rock 
Island  Railroad  v.  Morris,  26  Id.  400  ;  21  Id.  606  ? ;  Pennsylvania 
Railroad  Company  v.  McCloskey,  23  Pennsylvania  State,  526  ;  Old- 
field  v.  New  York  and  Harlem  Railroad  Company,  3  E.  D.  Smith, 
103). 

Judgment  affirmed. 


TELEGRAPHS. 


As  the  cases  relating  to  the  measure  of  damages  for  neglect  ana 
mistakes  in  the  transmission  of  telegraphic  messages,  which  have  oc- 
curred up  to  1873,  are  collected  in  "  Allen's  Telegraph  Cases,"  re- 
ports of  such  cases  are  omitted  here. 

The  following  more  recent  decisions,  however,  may  be  mentioned  : 

One  Brown  sent  a  dispatch  by  the  defendants'  line  to  the  plain- 
tiff, asking  for  $500.  By  the  negligence  of  the  defendants'  em- 
ployees the  sum  named  was  changed  to  $5,000,  which  the  plaintiff 
sent  to  Brown,  who  absconded  with  it.  In  an  action  for  damages  the 
referee  allowed  the  amount  of  the  loss.  This  was  held  to  be  wrong ;  as 
Brown's  embezzlement  did  not  naturally  result  from  the  defendants' 
negligence  (Lowry  v.  The  Western  Union  Telegraph  Co.,  60  N.  Y. 
198). 

The  defendant's  business  was  the  collection  of  messages  for  trans- 
mission by  telegraph.  The  plaintiffs  gave  him  for  transmission  to 
America,  a  message  in  cipher,  which  was  unintelligible  to  him.  He 
negligently  omitted  to  send  the  message,  in  consequence  of  which  the 
plaintiffs  lost  a  sum  of  money  which  they  would  have  earned  for  com- 
missions on  an  order  to  which  the  message  related. 

It  was  held  by  the  learned  judges  of  the  Common  Pleas  division 
of  the  High  Court  of  Justice,  that  the  plaintiffs  could  recover  only 
nominal  damages  (Sanders  and  others  v.  Stuart,  L.  R.  1  C.  P.  D.  326). 


810  FIRE   INSURANCE. 

FIRE  INSURANCE. 

Fire  Insurance;    General  Average;    Contribution. 


SUPREME    COURT,    MASSACHUSETTS. 

[1828]      George  Welles  el  al.  v.  Boston  Insurance  Com- 
pany (25  Mass.  [6  Pick.],  182). 

Insurance  against  fire  was  made  on  stock  in  trade,  consisting  of  cutlery  and  jewelry,  con- 
tained in  a  store.  A  fire  happening  in  the  neighborhood,  the  insured,  with  the  ap- 
probation of  the  insurer,  procured  blankets  and  spread  them  on  the  outside  of  the 
store,  whereby  the  building  and  its  contents  were  preserved,  but  the  blankets  were 
rendered  worthless.  Held,  that  this  loss  was  not  covered  by  the  policy,  but  that  it 
was  a  subject  of  general  average,  to  which  the  insurer  and  insured  should  contribute 
in  proportion  to  the  amount  which  they  respectively  had  at  risk  in  the  store  and  its 
contents.  Held  also,  that  buildings  in  the  neighborhood  which  would  have  been  en- 
dangered if  the  store  had  taken  fire,  and  upon  some  of  which  the  defendants  had  made 
iusurance,  were  too  remotely  affected  to  be  liable  to  contribution. 

Assumpsit  oh  a  policy  of  assurance,  whereby  the  defendant 
caused  the  plaintiffs  to  be  assured  $20,000  on  goods,  being  their 
stock  in  trade,  contained  in  store  No.  69  Washington  street,  Boston, 
against  loss  by  fire,  for  the  term  of  one  year. 

At  the  trial,  it  appeared  that  a  fire  took  place  within  the  year, 
viz.,  in  November,  1825,  in  Court  street,  near  which  the  store  was 
situated,  and  that  by  means  thereof  the  store  and  its  contents  were 
in  great  danger.  The  stock,  consisting  of  valuable  military  imple- 
ments and  jewelry,  and  such  articles  as  are  usually  comprehended  in 
a  jeweller's  stock,  was  removed  to  places  of  security,  and  the  loss 
and  damage  happening  to  it  was  adjusted  and  paid.  While  the  fire 
raged,  the  store  being  in  imminent  danger,  and  the  heat  so  great  as 
to  render  it  hazardous  to  continue  long  in  packing  up  and  removing 
the  goods,  it  was  proposed  by  a  witness,  who  was  then  aiding  in  the 
preservation  of  the  property,  to  procure  blankets  to  spread  on  the 
outside  of  the  store,  where  it  was  exposed  to  the  flames.  The  presi- 
dent of  the  insurance  company  was  there,  and  upon  being  asked  by 
Welles  his  opinion  of  it,  said,  if  it  was  thought  to  be  useful,  he 
should  like  to  have  it  tried.  Whereupon  a  bale  of  blankets  was 
procured  by  Welles,  which,  being  wet  and  hung  out  of  the  windows, 
were  of  essential  service  in  stopping  the  progress  of  the  flames,  and 
in  enabling  the  persons  in  the  store  to  remove  the  goods.    From  the 


WELLES  v.   BOSTON   INSURANCE   CO.  811 

state  of  the  weather  and  the  course  of  the  wind,  it  was  considered 
by  many  persons  present,  that  had  this  building  taken  fire,  the 
flames  would  have  been  communicated  to  the  old  State  House,  in 
State  street,  and  that  then  the  conflagration  would  have  been  very 
extensive.  The  defendants  were  largely  engaged  in  insuring  against 
fire,  and  at  this  time  there  was  a  subsisting  policy  for  $30,000  on  a 
building  near  the  State  House. 

The  cost  of  the  blankets  used  for  the  above  purpose  was  $93, 
and  they  were  so  nearly  destroyed  by  the  fire  as  to  be  wholly  worth- 
less. The  plaintiffs  paid  for  them,  and  demanded  from  the  defend- 
ants an  entire  indemnity.  The  defendants  contended  that,  if  they 
were  liable  at  all,  it  was  only  for  the  proportion  which  they  had  at 
risk  upon  the  policy,  taken  in  connection  with  the  store  of  which 
the  plaintiffs  had  a  lease  for  ten  years,  and  the  value  of  the  stock 
over  and  above  the  sum  insured  upon  it.  The  amount  of  the  plaint- 
iffs' stock  at  the  time  of  the  loss  was  stated  by  them  at  $35,000. 
The  store  was  estimated  to  be  worth  $5,000  and  the  lease  $5,000. 
On  these  data  the  defendants  estimated  their  proportion  of  the  loss 
by  the  blankets,  and  they  brought  into  court,  under  the  common 
rule,  a  sum  of  money  exceeding  such  estimate. 

If  the  defendants  were  right  in  supposing  that  they  were  not- 
liable  for  the  loss,  beyond  a  fair  proportion  calculated  on  the  above 
principles,  and  in  regard  to  the  subjects  of  contribution,  the  plaint- 
iffs were  to  become  nonsuit ;  otherwise,  &c. 

In  the  policy  it  is  provided  that  the  "  company  shall  not  be  liable 
for  more  than  the  sum  insured  in  any  case  whatever," — and  that,  "  in 
case  of  any  loss,  the  same  is  to  be  paid  without  any  deduction." 

Per  Curiam.  The  defendants  refuse  to  pay  the  whole  of  the 
loss  on  the  blankets,  on  the  ground  that  they  were  not  included  in 
the  policy ;  offering  however  to  contribute  in  proportion  to  the 
interest  which  the  parties  respectively  had  at  risk.  The  plaintiffs 
refuse  to  accept  less  than  the  whole,  because  they  say  that  the  blankets 
were  part  of  their  stock  in  trade.  But  there  seems  to  be  no  founda- 
tion for  this  pretension. 

The  plaintiffs  can  claim,  then,  only  on  the  ground  of  a  sacrifice 
made  by  them  for  the  preservation  of  the  property  endangered  by 
the  fire,  and  for  a  proportion  of  which  sacrifice  they  are  equitably,  if 
not  legally  entitled  to  recover.  They  contend,  however,  that  this  is 
not  a  case  proper  for  contribution,  it  being  customary  on  fire  poli- 
cies to  pay  the  whole  loss.  We  believe  the  practice  to  be  as  stated, 
but  as  the  present  claim  is  not  within  the  contract,  it  certainly  is 
reasonable  that  the  plaintiffs  should  bear  a  proportion  of  the  sacrifice 


§12  FIRE   INSURANCE. 

made  for  the  common  benefit.  This  decision  does  not  call  in  question 
the  general  principle,  that  a  loss  under  a  policy  against  fire  is  to  be 
paid  without  contribution. 

But  it  is  said  that  the  plaintiffs  and  the  defendants  are  not  the 
only  parties  who  ought  to  contribute,  since  all  the  property  in  the 
neighborhood,  on  some  of  which  the  defendants  had  underwritten, 
was  protected  by  the  expenses  in  question.  But  it  will  not  do  to 
take  so  wide  a  range  in  the  application  of  the  principle  of  contribu- 
tion. All  the  buildings  in  the  city  may  remotely  have  been  pro- 
tected, and  it  would  be  impossible  to  draw  the  line.  It  is  necessary, 
therefore,  to  limit  the  contribution  to  the  building,  and  the  property 
therein,  immediately  saved.  The  money  brought  into  court  is  suffi- 
cient to  cover  the  defendants'  proportion  of  the  expenses,  and  the 
plaintiffs  must  be  nonsuited. 


Fire  Insurance  ';  Open  Policy  ;   Loss  on  Property  in  a  Foreign 
Country  ;  Merchandise  as  Distinguished  from  Property. 


SUPREME    COURT,    MASSACHUSETTS. 

[1863.]  Burgess  and  Others  v.  Alliance  Insurance  Com- 
pany ;  Same  v.  New  England  Mutual  Marine 
Insurance  Company  (92  Mass.  [10  Allen],  221). 

If  a  partial  loss  occurs  upon  a  policy,  for  a  sum  expressed  in  dollars,  made  here,  upon 
property  situated  in  a  foreign  country,  the  rule  for  estimating  damages  is  to  deter- 
mine the  loss  at  the  place  where  it  occurred,  in  the  currency  of  that  country,  and 
then  to  find  the  equivalent  in  the  country  where  suit  is  brought,  by  determining  the 
actual  intrinsic  value  of  the  currency  of  that  country,  as  compared  with  the  currency 
of  the  other;  and  it  is  immaterial,  in  reference  to  this,  that  the  policy  contains  a 
provision  that  in  case  of  loss  the  company  shall  have  the  right  to  replace  the  ar- 
ticles lost  or  damaged  with  others  of  the  same  kind  and  equal  goodness. 

An  open  policy  of  insurance  upon  merchandise  will  not  cover  articles  kept  wholly  or  par- 
tially for  use  in  and  about  a  building,  but  only  articles  kept  for  sale ;  but  an  open 
policy  upon  "  property  "  contained  in  specified  buildings  will  cover  articles  kept  for 
use  as  well  as  those  kept  for  sale. 

Two  actions  of  contract  upon  policies  of  insurance.  The  first 
action  was  upon  an  open  fire  policy  issued  to  the  plaintiffs,  for  whom 
it  concerns,  by  the  Alliance  Insurance  Company,  for  "  any  sum  not 
exceeding  fifteen  thousand  dollars  in  any  one  place  in  any  one  time 
on  merchandise  in  the  buildings  and  on  the  wharf  occupied  by  H.  R. 


BURGESS   v.    ALLIANCE   INSURANCE   CO.  813 

Bishop,  located  in  Cabarien,  Cuba,  indorsements  to  be  reported  to 
this  company  at  the  close  of  each  month.  Liberty  to  have  other  in- 
surance." This  policy  was  indorsed  as  follows  :  "  1864  Jan.  1.  1 
mo.  to  Feb.  1,  '64.     $15,000  \  37.50." 

The  second  action  was  upon  two  open  fire  policies  issued  to  the 
plaintiffs,  for  whom  it  concerns,  by  the  New  England  Mutual  Ma- 
rine Insurance  Company,  one  of  which  was  for  ten  thousand  dollars, 
"  on  property  contained  in  buildings,  sheds,  yards  and  wharf  in  the 
ports  of  Cienfuegos  and  Cabarien,  Cuba.  Liberty  of  other  insur- 
ance ; "  and  the  other  was  for  five  thousand  dollars  on  the  same  sub- 
ject.    The  first  of  these  policies  was  indorsed  as  follows  : 

Date.  Amount.  Rate.     Premium.     Situation.  Time. 

1864,  Jan.  5.  10,000.  \  25,00  Cabarien.  1  mo.  to  Feb.  5,  '64. 
The  second  was  similarly  indorsed  for  $5,000,  for  one  month  from 
December  28th,  1863.  All  of  the  policies  contained  the  following 
provision :  "  And  the  assured  further  covenants  and  agrees  that,  in 
case  of  loss  or  damage,  the  said  company  shall  have  the  right  to  re- 
place the  articles  lost  or  damaged  with  others  of  the  same  kind  and 
of  equal  goodness,  at  any  time  after  sixty  days  after  notice  of  any 
loss." 

The  cases  were  reserved  in  this  court  upon  the  following  agreed 
statement  of  facts : 

"  The  defendants  made  to  the  plaintiffs  the  policies  declared  on. 
and  a  part  of  the  property  mentioned  in  the  policies  was  destroyed 
by  fire  at  Cabarien  on  the  ninth  day  of  January,  1864,  and  the  de- 
fendants received  due  notice  and  proof  of  the  loss.  At  the  time  of 
the  insurance  and  of  the  loss,  and  at  the  time  when  the  loss  became 
payable,  the  value,  at  said  Cabarien,  of  the  property  destroyed,  was 
twenty  thousand  seven  hundred  and  twenty-nine  and  -j5-^  dollars  in 
the  currency  at  Cabarien,  and  the  currency  of  Cabarien  was  gold  and 
silver  ;  that  is  to  say,  gold  doubloons  and  Spanish  dollars.  If  with 
the  coined  dollars  of  the  United  States  a  purchase  of  exchange  on 
Cabarien  could  be  made  here  at  par,  the  dollar  of  the  United  States 
would  be  treated  as  equal  to  the  dollar  of  Cuba. 

"  The  schedule  hereto  annexed  contains  a  true  statement  of  the 
property  destroyed,  and  the  value  of  each  item  thereof  at  said  Ca- 
barien, in  gold  and  silver  as  aforesaid  ;  and  all  of  said  property  was 
covered  by  said  policies  and  the  indorsements  thereon,  provided  said 
policies  attached,  except  the  items  referred  to  in  the  statement 
signed  by  H.  R.  Bishop,  hereto  annexed  ;  and  in  regard  to  said  items 
the  question  is  left  to  the  determination  of  the  court  upon  said  state- 
ment, whether  the  species  of  property  as  described  in  said  statement 
is  covered  by  the  terms  of  said  policies. 


814  FIRE   INSURANCE. 

"  The  premiums  on  said  policies  were  paid  at  Boston  by  the 
plaintiffs  in  paper  currency  of  the  United  States. 

"H.  R.  Bishop,  a  resident  of  said  Cabarien,  was  owner  of  the 
property  destroyed,  and,  if  parol  evidence  of  the  fact  would  be  ad- 
missible, the  plaintiffs  effected  said  insurance  as  the  agents  and  in 
behalf  of  said  Bishop  ;  and  the  plaintiffs  were  duly  authorized  to  ef- 
fect the  same,  but  such  ownership  was  not  communicated  to  the  de- 
fendants or  known  by  them. 

"  The  plaintiffs  claim  that  the  judgments  here  should  be  for  an 
amount  which  would  make  good  to  said  Bishop  at  said  Cabarien  his 
said  loss ;  and  that,  to  effect  this,  judgments  should  be  rendered  for 
a  sum  which  would  have  purchased  a  remittance  payable  in  Cuba  to 
the  amount  of  the  plaintiffs'  loss  at  the  time  when  the  same  was  due 
and  payable. 

"  The  defendants,  among  other  things,  claim  that  by  the  terms  of 
the  policies  they  were,  if  liable  at  all,  only  liable  to  pay  the  amount 
of  the  loss  at  Boston,  without  the  addition  of  any  premium  of  ex- 
change. 

"  If  upon  the  foregoing  facts  the  plaintiffs  are  entitled  to  recover, 
the  causes  are  to  be  sent  to  an  assessor  to  ascertain  and  make  up  the 
amount  of  the  judgments,  under  the  direction  of  the  court ;  other- 
wise the  plaintiffs  to  be  nonsuit." 

The  schedule  annexed  contained  items,  chiefly  of  sugar  and  mo- 
lasses, amounting  in  all  to  $20,729  54. 

The  statement  of  II.  R.  Bishop  as  to  certain  items  in  the  schedule, 
concerning  which  special  questions  were  raised,  was  as  follows : 

"  The  mast  and  boom  had  been  taken  by  me  from  the  lighter 
'  Don  Quixote '  some  few  months  prior  to  the  fire,  and  were  stored 
for  sale,  end  were  not  in  use  or  kept  for  use  by  me. 

"  The  two  large  molasses-pumps  were  not  attached  to  the  build- 
ings, but  could  be  and  were  transferred  to  different  parts  of  the  same 
building  and  of  different  buildings,  as  I  had  occasion  to  use  them. 

"  The  four  water-tanks  were  not  attached  to  the  buildings,  but 
were  round  and  movable,  although  very  large  ;  they  had  been  re- 
moved from  another  place  to  the  place  where  they  were  standing 
when  burnt  but  a  few  months  prior  to  the  fire. 

"  The  tanks  were  kept  by  us  for  the  purpose  of  catching  water  to 
sell.  Of  course  I  used  such  of  the  water  as  1  needed  for  my  own 
use,  but  the  greater  portion  I  sold.  There  is  no  drinking  water  at 
Cabarien,  except  rain  water,  which  is  caught  in  this  way  and  sold  to 
the  inhabitants  and  the  shipping  ;  principally  to  the  latter. 

"The  two  large  cars  were  used  by  me  on  a  railroad  track,  con- 


BURGESS   v.    ALLIANCE   INSURANCE   CO.  815 

necting  my  warehouses  with  my  wharf ;  they  were  platform  cars 
and  used  for  hauling  freight.  I  had  then  offered  them  for  sale,  as  I 
had  other  cars  more  suitable  for  my  purpose  on  their  way  to  me. 
The  other  car  was  a  small  car  not  used  by  me,  as  it  was  too  small  for 
my  track,  and  I  had  it  for  sale. 

"  The  four  large  street  lanterns  were  hung  on  a  hook  attached  to 
pulleys,  so  that  they  could  be  hoisted  and  lowered  for  cleaning  and 
filling. 

"  The  stationery  was  papers,  pens,  ink  and  memorandum  books, 
all  of  which  were  new  and  unused. 

"■  The  custom-house  book  is  a  printed  book  of  the  rates  of  cus- 
toms." 

Hoar,  J. — The  court  are  of  opinion  that  only  the  mast  and  boom, 
stored  for  sale,  and  the  small  railroad  car,  of  the  articles  named  in 
the  statement  of  Bishop,  can  be  considered  as  merchandise,  within 
the  meaning  of  the  policy  of  the  Alliance  Insurance  Company,  and 
that  they  are  to  be  so  regarded.  The  word  "  property  "  has  a  much 
more  extended  meaning,  and  that  being  the  word  used  in  the  policy 
of  the  New  England  Mutual  Marine  Insurance  Company,  we  have  no 
doubt  that  it  includes  all  the  articles  enumerated  in  the  statement. 

The  principal  question  is  common  to  both  cases,  and  it  is  this  : 
whether,  in  case  of  a  partial  loss  of  property  situated  in  another 
country,  and  insured  here,  in  computing  the  sum  to  be  recovered, 
anything  is  to  be  allowed  for  the  expense  of  transmitting  to  that 
country  the  sum  of  money,  which,  paid  there,  would  furnish  an 
equivalent  for  the  value  of  the  property  destroyed  by  fire  ?  And  we 
are  of  opinion  that  no  such  allowance  can  legally  be  made.  In  other 
words,  nothing  can  be  added  for  the  cost  of  exchange  in  transmitting 
the  funds  which  are  of  intrinsically  equal  value  in  this  country  with 
those  which  represent  the  pecuniary  measure  of  the  loss  in  the 
country  where  it  occurred. 

The  cases  of  Adams  v.  Cordis  (8  Pick.  260) ;  Alcock  v.  Hopkins 
(6  Cush.  484)  ;  Lodge  v.  Spooner  (8  Gray,  166) ;  and  the  recent  case 
of  Hussey  v.  Farlow  (9  Allen,  263).  are  decisive  as  authorities  upon 
the  point  in  this  commonwealth,  and  we  are  satisfied  with  the  cor- 
rectness of  the  principle  in  its  application  to  the  cases  now  before  us. 

The  argument  for  the  plaintiffs  is,  that  the  contract  of  insurance 
is  a  contract  of  indemnity ;  and  that  an  indemnity  for  the  loss  re- 
covered here  is  such  a  sum  of  money  as  would  purchase  a  remit- 
tance, which,  when  collected  at  the  place  where  the  loss  occurred, 
would  be  an  exact  equivalent  there  to  the  value  of  the  property  de- 
stroyed.    And  it  is  urged  that  this  view  is  sustained  by  the  clause  in 


816  FIRE   INSURANCE. 

the  policy  which  gives  the  insurer  the  right  to  replace  the  property 
destroyed  by  other  property  of  like  kind  and  equal  value. 

The  latter  provision  is  made  for  the  benefit  of  the  insurer,  and 
serves  to  protect  him  from  an  overvaluation.  If  he  elects  to  avail 
himself  of  it,  he  must  of  course  replace  the  property  at  the  place  of 
the  loss.  But  in  that  case  he  may  avail  himself  of  means  which  he 
may  have  there,  or  which  he  may  procure  from  any  other  quarter. 
The  expense  he  incurs  has  no  necessary  relation  to  the  rate  of  ex- 
change between  the  country  of  the  loss  and  any  other  country  in 
particular.  On  the  other  hand,  if  he  does  not  elect  to  repair  the 
loss,  the  obligation  to  pay  the  value  of  the  property  in  money  is  not 
confined  in  its  operation  to  any  country.  It  may  be  enforced  in  any 
country  in  which  the  debtor  may  be  found,  or  wherever  jurisdiction 
can  be  obtained  of  the  cause  or  the  parties.  There  is  nothing  local 
about  it.  The  debtor  must  pay  where  he  is  found  or  can  be  sued, 
and  the  creditor  may  not  wish  to  transfer  the  money  to  the  place 
where  the  cause  of  action  accrued  ;  certainly  he  is  under  no  obliga- 
tion to  do"  so. 

In  the  same  country,  the  matter  is  very  plain.  If  a  man  loses  by 
fire  property  in  New  Orleans  valued  there  at  $1,000,  would  it  be 
contended  that  he  would  recover  a  different  sum  if  he  sued  his  in- 
surer in  New  Orleans,  or  in  Mobile,  or  St.  Louis,  or  Boston  ?  The 
only  difference  in  principle  between  such  an  example  and  a  loss  in  a 
foreign  country,  would  seem  to  be,  that  the  loss  is  estimated  in  a 
different  currency  from  that  in  which  judgment  is  recovered  in  the 
latter  case,  and  in  the  same  currency  in  the  former.  Suppose  the 
insurance  companies,  immediately  after  the  loss  occurred  in  Cuba, 
had  ascertained  its  amount  in  Spanish  dollars,  and  had  given  a  prom- 
issory note  for  that  number  of  dollars,  without  specifying  the  place 
of  payment,  would  there  be  any  allowance  made  for  exchange  if  the 
note  were  afterward  sued  in  another  country  ? 

It  is  true  that  the  object  of  a  policy  of  insurance  is  indemnity  to 
the  insured  ;  but  the  standard  of  value  used  in  estimating  the 
amount  of  the  loss  may  not  under  all  circumstances  produce  the  re- 
sult of  giving  an  exact  indemnity  at  the  place  where  a  judgment  is 
recovered  upon  the  policy.  The  best  practical  rule  for  indemnity 
seems  to  us  to  be,  to  estimate  the  loss  at  the  place  where  it  occurred 
in  the  currency  of  that  country,  and  then  to  find  the  equivalent  in 
the  country  where  suit  is  brought  by  determining  the  actual  intrin- 
sic value  of  the  currency  of  that  country  as  compared  with  that  of 
the  other,  thus  computing  the  value  according  to  the  real  par  of  ex- 
change.    If  the  market  value  of  exchange  be  regarded,  the  amount 


THE   COMMONWEALTH   INSURANCE   CO.  v.    SENNETT.  817 

to  be  paid  to  constitute  an  indemnity,  would  depend  on  the  rate  of 
exchange  when  the  debt  should  finally  be  collected  on  the  execution. 
We  are  aware  that  the  doctrines  of  this  court  on  this  subject  are 
not  uniformly  approved  by  text  writers,  or  by  other  courts,  and  that 
a  considerable  diversity  of  opinion  has  prevailed  upon  it.  But  it  has 
been  sanctioned  by  those  whose  opinion  is  entitled  to  respect,  and 
best  accords  with  our  own  judgment  of  the  law  (1  Arnould  on  Ins. 
330;  Marsh.  Ins.  [1th  ed.]  502-3,  note  k).  The  cases  will  therefore 
be  sent  to  an  assessor,  according  to  the  agreement  of  the  parties,  to 
fix  the  sums  which  the  plaintiffs  shall  recover  in  pursuance  of  the 
views  of  the  court  above  expressed. 


Fire  Insurance  ;  Indemnity  ;  Stipulations  as  to  ascertainment  of 
Yalue  ;  Agreement  to  Eepair  or  Replace  Destroyed  Prop- 
eety. 


SUPREME  COURT,  PENNSYLVANIA. 

[i860.]    The   Commonwealth  Insurance   Company  v.  Sen- 
nett,  Barr  &  Co.  (37  Perm.  St.  205). 

Insurance  is  a  contract  of  indemnity,  in  which  the  parties  may  stipulate  for  the  manner 
in  which  that  indemnity  shall  be  made,  and  the  time  when  it  shall  be  valued  ;  and 
when  they  do  so,  the  law  will  carry  out  their  contracts,  as  in  other  cases,  if  there  be 
no  fraud  in  either  case. 

Where  an  open  policy  of  insurance  specifies  that  the  damages  are  to  be  estimated  at  the 
"  true  and  actual  cash  \alue  of  the  property  at  the  time  the  loss  may  happen,"  the 
measure  of  damages  is  that  which  was  agreed  upon  by  the  parties,  and  it  is  error  to 
allow  the  jury  to  adopt  any  other  rule. 

The  privilege  reserved  by  insurers  to  repair  or  replace  the  property  destroyed  is  a 
reservation  for  the  benefit  of  the  company,  which  they  may  adopt  or  not,  as  they 
think  proper ;  and  therefore  the  expense  of  repairing  or  replacing  the  property  is 
not  a  proper  rule  for  estimating  the  damages. 

The  fact  that  the  property  destroyed  was  patented  cannot  affect  a  contract  to  measure  the 
damages  by  its  value  when  the  loss  occurred. 

Error  to  the  Common  Pleas  of  Erie  county. 

This  was  an  action   of    debt,  brought  in  the  court   below  by 
Pardon  Sennett,  M.  P.  Barr,  Conrad  Brown,  and  J.  J.  Finley,  part- 

52 


818  FIRE   INSURANCE. 

ners  doing  business  as  Sennett,  Barr  &  Co.,  against  The  Common- 
wealth Insurance  Company. 

To  a  narr.  in  debt,  the  defendants  filed  a  special  plea,  averring 
concealments  and  misrepresentation  on  the  part  of  the  plaintiffs, 
adding  the  formal  pleas  of  non  est  factum  and  nil  debet.  To  this 
a  replication  and  demurrer  was  filed,  which  demurrer  was  after- 
wards withdrawn.  The  plaintiffs  then  replied  to  and  traversed  the 
defendants'  plea,  and,  on  the  issue  thus  made  up,  the  parties  went  to 
trial. 

The  plaintiffs  below  were  owners  of  a  number  of  machines  called 
mowers  and  reapers,  which  they  had  manufactured  for  sale,  and 
stored  in  a  warehouse  at  Erie.  They  were  insured  against  loss  or 
damage  by  fire  by  the  defendants  below,  in  a  policy  in  the  usual 
form,  in  the  sum  of  $3,000.  The  policy  was  dated  May  25th,  1857, 
and  was  for  the  term  of  six  months.  On  the  25th  of  Novem- 
ber, 1857,  the  policy  was  renewed  by  J.  J.  Lints,  agent  of  defend- 
ants, for  a  further  period  of  six  months.  On  the  night  of  the 
10th  of  February,  1858,  the  property  insured  was  totally  destroyed 
by  fire. 

On  the  trial,  the  defendants  offered  to  show,  by  Matthew  Dick- 
son and  others,  that  the  kind  of  machine  known  as  Danforth's 
reaper  and  mower,  and  manufactured  by  the  plaintiffs,  and  being 
the  same  kind  of  machine  insured  and  destroyed,  were  of  little  or 
no  value — were  worthless  as  an  agricultural  instrument,  or  for  any 
other  use  or  purpose — and  that  they  had  no  value,  save  as  mere 
wood  and  old  iron — and  that  the  machines  were  worthless  both  on 
account  of  defects  in  construction,  and  in  the  principle  of  the 
machines  themselves.  To  this  the  plaintiffs  objected,  but  the  court 
said  :  "  We  will  admit  evidence  to  show  that  the  machines  could  be 
manufactured  at  a  less  price  than  the  jDlaintiffs'  witnesses  say  they 
were  made  and  sold  for,  or  that  the  plaintiffs  knew,  when  making 
them,  that  they  were  worthless  in  principle,  and  that  they  were 
defective  in  workmanship,  but  not  that  they  were  defective  in  prin- 
ciple, as  it  was  a  patented  one."  To  this  ruling  the  defendants 
excepted. 

The  policy  provided,  among  other  things,  as  follows:  "And  the 
said  company  do  hereby  promise  and  agree  to  make  good  unto  the 
said  assured,  their  executors,  administrators,  or  assigns,  all  such  im- 
mediate loss  or  damage  not  exceeding  the  sum  hereby  insured,  as 
shall  happen  by  fire  to  the  property  above  specified — the  said  loss  or 
damage  to  be  estimated  according  to  the  true  and  actual  cash  value 
of  the  said  property  at  the  time  the  same  shall  happen." 


THE   COMMONWEALTH   INSURANCE   CO.    v.    SENNETT.  819 

The  defendants  requested  the  court  to  instruct  the  jury  as  to  the 
measure  of  damages,  that  the  jury  were  not  to  be  confined  to  the 
evidence  of  the  cost  of  manufacturing  the  machines  as  given  by 
plaintiffs,  but  might  be  governed  by  the  actual  cash  value,  as  proved 
by  defendants,  without  reference  to  the  cost  of  construction.  The 
court  refused  so  to  charge  the  jury,  but  instructed  them  that  "  the 
value  as  estimated  in  the  manufacture  of  each  machine,  and  before 
it  was  tried  in  the  field,  would  be  the  standard  of  valuation."  And 
further,  on  this  point,  the  court  said  to  the  jury :  "  Admitting  that 
many  of  the  machines  did  not  work  when  they  were  put  to  the 
trial,  and  this  because  of  a  defect  in  the  principle  upon  which  they 
were  got  up,  and  not  in  the  mechanism  of  them,  that  would  not 
interfere  with  the  plaintiffs'  right  to  recover  according  to  their 
estimated  or  actual  value  when  the  insurance  was  made,  unless,  as 
before  stated,  the  plaintiffs  were  aware  of  the  defect.  The  asking 
or  selling  price  would  not  be  the  standard  of  value,  for  the  company 
would  have  the  option  to  replace  by  similar  articles  or  pay  the  cash, 
but  the  cost  of  construction." 

The  jury  found  in  favor  of  the  plaintiffs  the  sum  of  $3,262  50, 
and  judgment  having  been  entered  thereon,  the  case  was  removed 
into  this  court  by  the  defendants,  who  assigned  for  error  the  instruc- 
tion of  the  court  below,  as  to  the  measure  of  damages. 

The  opinion  of  the  court  was  delivered,  October  25th,  1860,  by 
Thompson,  J. — There  is  nothing  in  the  policy  of  the  law  which 
abridges  the  right  and  power  of  parties  to  a  contract  of  insurance 
from  stipulating  in  regard  to  the  mode  and  manner  of  estimating  or 
valuing  a  loss  when  it  shall  occur,  or  as  to  the  time  which  shall  be 
the  period  of  the  valuation  of  the  property  destroyed,  or  such  other 
matters  within  the  scope  of  a  fair  transaction  as  they  may  see  proper. 
Insurance  is  a  contract  of  indemnity,  and  if  the  parties  stipulate 
for  the  manner  in  which  that  indemnity  shall  be  made,  on  the  con- 
tingency of  liability,  it  is  their  right  to  do  so,  and  the  law  will  carry 
out  their  contracts  as  made,  if  there  be  no  fraud  in  them,  as  in  other 
cases.  Trask  v.  The  State  Fire  &  Marine  Ins.  Co.  (5  Casey,  198)  ; 
North-Western  Ins.  Co.  v.  Phoenix  Oil  &  Candle  Co.  (7  Casey,  448). 
Mr.  Phillips,  in  his  Treatise  on  Insurance,  chap.  1,  §  3,  says  : 
"  The  indemnity  intended  in  insurance  is  not  the  putting  the  party 
insured  into  as  good  a  condition  as  he  would  in  fact  have  been  if  no 
loss  had  happened ;  it  means  the  repayment  of  the  expense  incurred, 
and  the  payment  for  as  much  of  the  insured  subject  as  is  lost,  at  its 
market  value,  or  its  value  as  agreed  upon  in  the  policy." 

The  policy  in  this  case  was  an  open  one,  as  contradistinguished 


820  FIRE   INSURANCE. 

from' a  valued  policy,  and  in  it  the  parties  have  chosen  to  fix  for 
themselves  the  standard  of  valuation,  and  have  stipulated  that  it 
should  be  the  "  true  actual  cash  value  of  the  property,"  and  the 
time  for  ascertaining  such  value  to  be  the  date  of  its  injury  or  de- 
struction by  fire.  Now,  unless  it  can  be  shown  that  they  had  not 
the  right  so  to  contract,  or  have  used  terms  possessing  some  other 
than  their  ordinary  meaning  and  import,  this  basis  for  estimating 
the  loss  thus  established  must  control  and  govern.  It  is  the  law  of 
the  contract  established  by  the  parties  themselves.  Nothing  has  or 
can  be  shown,  we  think,  to  countervail  their  right  so  to  contract  in 
regard  to  the  subject-matter  mentioned,  or  which  controls  the  or- 
dinary meaning  of  the  terms  used  by  them,  This  has  not  and  can- 
not be  done.  The  contract  is  so  plain  that  interpretation  is  not 
needed  to  arrive  at  what  was  meant.  The  parties  meant  only  what 
they  have  plainly  said ;  and  it  was  a  plain  mistake  to  disregard 
the  language  used,  and  construe  the  contract  as  if  no  stipulation 
existed. 

It  is  usual,  in  the  absence  of  a  stipulation  in  marine  insurance,  to 
value  the  goods  lost  and  covered  by  an  open  policy,  as  of  the  time  of 
the  commencement  of  the  risk,  and  this  was  the  nature  6f  the  insur- 
ance treated  of  by  Mr.  Phillips,  as  cited  by  the  counsel  for  the  de- 
fendant in  error. 

I  will  not  attempt  to  point  out  the  distinctive  differences  in  this 
respect  between  marine  and  fire  insurances,  and  wherein  they  con- 
sist. If  we  were  dealing  with  a  policy  in  which  no  stipulation  ex- 
isted for  determining  when  or  how  the  valuation  should  be  made, 
and  the  question  were  to  be  determined  by  principles  of  law  ex- 
clusively, we  might  be  required  to  look  more  closely  to  them.  But 
such  is  not  the  case  here.  The  parties  have  made  the  law  of  this 
contract  in  this  particular  for  themselves,  and  we  must  administer  it. 
They  have  covered  the  whole  ground. 

The  case  of  Niblo  v.  The  North  American  Ins.  Co.  (1  Sandf. 
558),  has  no  possible  bearing  on  the  point  in  question.  There  the 
policy  contained  no  stipulation  such  as  we  find  here,  and  the  court 
allowed  the  full  value  of  the  tenement  insured,  without  regard  to 
the  extrinsic  circumstance  that  it  was  to  be  removed  within  fifteen 
days.  They  held  that  perad venture  the  lease  of  the  ground  might 
be  renewed,  or  the  insured  might  sell  it  to  the  owner  of  the  ground, 
or  its  value  might  not  be  impaired  by  removing  it  to  an  adjacent 
vacant  lot.  Intrinsically  it  was  not  impaired  by  the  circumstance 
that  the  ground  lease  was  soon  to  end.  Such  had  been  the  doctrine 
laid  down  in  Laurent  v.  The  Chatham  Fire  Ins.  Co.  (1  Hall.  41). 


THE   COMMONWEALTH   INSURANCE   CO.  v.  SEXNETT.  821 

Such  cases  as  these  are  good  enough  law  where  they  belong,  but 
furnish  no  rule  where  the  parties  have  fixed  a  law  for  themselves. 
These  views  apply  as  well  to  the  restricted  operation  of  the  testi- 
mony received,  as  to  the  ruling  in  answer  to  the  defendant's  eleventh 
point.     There  was  error  in  both. 

The  option  to  replace  the  machinery,  if  destroyed,  was  a  reserva- 
tion for  the  benefit  of  the  company ;  they  were  not  bound  to  adopt 
it.  "What  it  would  cost  to  replace  it,  was,  therefore,  not  to  furnish 
the  rule  for  the  damages  which  the  company  must  pay  to  make  good 
the  loss.  If  this  were  to  be  held,  it  would  be  equivalent  to  enforc- 
ing the  option  as  an  obligation.  It  is  stated,  in  Angell  on  Insurance 
<J  269),  that  insurers  have  the  privilege  of  making  repairs  or  replac- 
ing property,  if  they  see  fit  to  do  so ;  but  if  they  elect  not  to  do  so, 
"  they  are  liable  only  to  pay  a  fair  indemnity  for  the  loss."  This 
shows  that  the  estimated  cost  of  a  compliance  with  the  option  is  not 
to  be  considered  in  assessing  the  amount  to  be  paid  on  the  loss.  If 
it  had  any  weight  here,  it  was  wrong. 

Xor  was  the  fact  that  the  machines  insured  were  constructed  un- 
der a  patent  of  any  importance.  Patented  or  unpatented,  what  they 
were  worth  at  the  happening  of  the  fire  was,  by  the  agreement  of 
the  parties,  to  be  the  measure  of  their  value ;  and  this  must  be  as- 
certained by  testimony,  as  is  clone  in  every  other  case  where  the  value 
is  not  fixed. 

For  these  reasons,  the  judgment  is  reversed,  and  a  venire  de  novo 
awarded. 


822  FIRE    INSURANCE. 


Breach  of  Contract  to  Insure  ;  In  the  Absence  of  any  Stipu- 
lation as  to  the  Amount  of  Insurance,  or  of  ant  rule  or 
usage  of  Insurance  Companies  as  to  the  proportion  of  the 
value  which  they  will  insure,  the  measure  of  damages  18 
the  wnole  yalue  of  the  property  destroyed. 


SUPREME   COURT,    NEW    HAMPSHIRE. 

[1840.]  Ela  v.  French  (11  N.  H.  356). 

The  plaintiff  consigned  books  to  the  defendant  at  New  York,  for  sale  on  commission,  and 
the  defendant,  among  other  things,  agreed  to  cause  them  to  be  insured.  He  neg- 
lected to  procure  an  insurance,  and  the  books,  while  in  his  possession,  were  de- 
stroyed by  fire.  In  an  action  upon  the  contract,  it  was  held  that  the  plaintiff  was 
entitled  to  recover  the  value  of  the  books,  because,  in  the  absence  of  all  other  testi- 
mony, a  contract  to  insure  must  be  construed  to  mean  a  contract  to  insure  them  at 
their  value. 

The  defendant  agreed  to  have  insured  against  loss  by  fire,  books 
consigned  to  him  for  sale  on  commission.  This  he  neglected  to  do, 
and  the  books,  with  the  exception  of  two  boxes,  were  burned  while 
in  his  possession.  In  an  action  on  the  contract,  it  was  held  that  in 
the  absence  of  evidence  of  any  usage  which  might  have  affected  the 
contract,  the  full  value  of  the  goods  was  the  measure  of  damages. 

Gilchrist,  J. — There  is  no  evidence  in  the  case  on  which  to 
charge  the  defendant  upon  the  first  count,  for  books  sold  and  de- 
livered, nor  upon  the  second  count,  for  money  had  and  received. 

The  only  question  in  the  case  arises  upon  the  other  counts,  which 
allege  a  delivery  of  the  books  to  the  defendant,  for  sale  on  commis- 
sion ;  a  contract  by  him  to  cause  them  to  be  insured,  and  their  sub- 
sequent destruction  by  fire,  without  any  insurance  having  been 
effected  upon  them.  The  plaintiff  has  proved  the  contract,  as 
alleged  in  the  declaration,  and  the  breach  of  it  by  the  defendant,  in 
neglecting  to  effect  an  insurance  upon  the  books,  and  their  destruc- 
tion by  fire  ;  and  the  only  question  seems  to  be,  whether  the  plaintiff 
shall  recover  the  value  of  the  books,  as  damages  for  the  breach  of 
the  contract. 

The  defendant  has  offered  no  evidence  to  show  the  course  of 
business,  or  the  custom  and  usage  of  merchants  in  contracts  of  this 
kind,  if  any  custom  exist.  Nor  has  he  shown  whether,  by  the  usage 
of  merchants  in  New  York,  a  contract  to  insure  generally  goods  con- 
signed for  sale  on  commission,  is  understood  to  impose  on  the  party 


EL  A   v.   FRENCH.  823 

the  duty  of  causing  the  goods  to  be  insured  at  their  full  value,  or  for 
a  less  amount.  We  have,  then,  before  us,  evidence  of  a  contract  to 
insure,  and  of  a  breach  of  that  contract ;  and  without  any  thing  to 
explain  it,  what  rule  of  damages  can  we  adopt  ?  The  loss  to  the 
plaintiff  was  the  value  of  the  books ;  and  we  must  presume,  in  the 
absence  of  evidence,  that  if  they  had  been  insured,  it  would  have 
been  for  their  value.  This  value,  then,  is  the  only  measure  of  dam- 
ages. Probably  the  insurance  offices  in  the  city  of  Xew  York  have 
some  rule  for  their  guidance  in  granting  policies  upon  property  of 
this  character,  and  perhaps  they  will  not  insure  beyond  a  certain 
proportion  of  the  value  of  such  property.  But  even  if  this  be  so, 
we  have  no  evidence  to  guide  us  in  ascertaining  the  rate  per  cent, 
upon  the  value  of  the  books.  "When  we  lay  aside  the  value  of  the 
books  as  our  guide,  we  have  no  more  authority  to  take  one  sum  than 
another,  as  the  extent  of  the  damages,  for  there  is  no  custom  of 
which  we  can  judicially  take  notice. 

We  must,  therefore,  consider  this  as  a  contract  to  insure  the 
books  at  their  full  value.  If  the  defendant  had  desired  to  limit  his 
liability  to  any  particular  sum,  by  proof  of  any  custom  explanatory 
of  contracts  of  this  description,  it  was  competent  for  him  to  offer 
such  evidence.     As  this  has  not  been  done,  there  must  be 

Judgment  on  the  verdict. 


GENERAL    INDEX. 


GENERAL   INDEX. 


ABANDONMENT,  of  work,  defeats  action  for  price,  375,  377. 

of  leased  premises  by  tenant,  670. 
ABATEMENT  of  price  for  work,  for  insufficient  performance,  363,  368, 
370. 

of  damages.     See  Mitigation  of  Damages. 
ACCEPTANCE  of  goods,  by  owner,  to  mitigate  carrier's  liability,  101,  102. 

damages  for  refusal  of  vendee  to  accept,  230,236. 

damages  for  breach  of  contract  to  honor,  475. 
ACCOUNTS  STATED,  for  money  lent,  interest  on,  525. 
ACTION,  second  action  arising  out  of  same  transaction,  363. 

for  work  and  labor,  election  of  form  of,  371. 

no  election  where  contract  is  executory,  375. 

by  servant,  for  wrongful  discharge,  407. 

by  surety  against  principal,  for  breach  of  covenant  to  pay  note,  420. 

on  bond  with  penalty,  election  to  sue  for  penalty  or  for  breach, 
449  n. 

for  conversion  of  stocks,  measure  of  damages,  606. 

circuity  of,  627. 

several,  for  continuing  nuisance,  658,  662  n. 

against  town  for  defect  in  highway,  685. 

when  maintainable  by  married  woman,  for  slander,  725. 

by  husband  and  wife,  for  slander  of  wife,  737. 

under  statute,  for  injuries  causing  death,  793  et  seq. 
ACTUAL  DAMAGES,  when  the  measure  in  actions  for  work  and  labor, 
371. 

when  measure  against  collecting  agent,  393. 

in  trover,  634. 

are  measure  of  damages  in  actions  for  collision,  773. 
ACTUAL  LOSS,  must  be  sustained  to  create  a  claim  for  damages,  145. 

is  the  measure  of  damages  in  contract,  145. 

exceptions  to  rule  of,  145. 


828  GENERAL   INDEX. 

ACTUAL  LOSS— continued. 

when  the  measure  of  damages  in   actions  for  failure  to  deliver 
goods  sold,  347. 

parties  may  contract  for  greater  damages  than,  502. 
AGENT.     See  Principal  and  Agent. 

AGGRAVATION  OF  DAMAGES,  against  factor  for  unauthorized  sale, 
402. 

in  actions  for  breach  of  promise,  757  et  seq. 
AGREEMENTS.     See  Contracts. 
ALTERNATIVE  CONTRACTS.     See  Contracts. 

ANIMALS,  damages  for  trespass  by,  where  defendant  broke  covenant  to 
repair  gate,  493. 

damages  for  breach  of  warranty  in  sale  of  horse,  526,  529,  531  n. 

in  sale  of  diseased  cattle,  545. 
APPLICATION  OF  PAYMENTS,  right  of  debtor  to  direct,  427. 
ASSAULT,  criminal  punishment  of  defendant  does  not  mitigate  damages, 
741. 

exemplary  damages  recoverable  in  action  for,  741. 
ASSESSMENTS,  damages  on  breach  of  lessees  covenant  to  pay,  502. 

of  value  of  land  taken  by  municipal  corporation,  6G7. 
ASSUMPSIT,  indebitatus,  for  work  and  labor,  375. 
ATTACHMENT,  damages  for  wrongful,,  640. 
ATTORNEY'S  FEES,  when  allowed  as  damages,  747. 

when  not  allowed,  10  n.,  751  n. 

in  ejectment  suit,  4. 

in  Massachusetts,  10  n. 

not  allowed  in  action  for  infringement  of  patent,  751  n. 

or  in  action  for  flowing  lands,  751  n. 

allowed  in  actions  for  obstructing  highway,  752. 
AUTHORITY,  unauthorized  contract,  damages  fur  breach  of,  384. 

implied  warranty  of,  381. 

damages  for  departure  from  by  agent,  402. 

BAILMENT,  damages  of  bailor  against  third  person  converting  property 
in  hands  of  bailee,  630. 
bailee  having  special  property  in  property  injured,  may  recover 
its  whole  value,  685. 
BILLS  OF  EXCHANGE,  damages  against  agent  to  collect,  for  neglect, 
393. 
damages  for  breach  of  contract  to  honor,  475. 
damages  for  non-presentment  in  due  time,  393. 
BILLS  OF  PARTICULARS,  apply  to  all  counts  in  declaration,  377. 
when  not  demandable  in  action  on  contract,  377. 


GENERAL   INDEX.  829 

BREACH  OF  PROMISE  (Action  for), 

effect  of  seduction  to  enhance  the  damages  in,  757. 

evidence  of  defendant's  pecuniary  circumstances,  760. 

of  lewd  conduct  on  part  of  plaintiff,  760. 

defendant's  motive  may  be  considered  in  fixing  damages,  766. 

facts  to  mitigate  or  aggravate  damages,  766. 
BROKERS.     See  Principal  and  Agent. 
BUSINESS,  loss  of,  as  a  measure  of  damages,  284. 

damages  for  inconvenience  to,  284. 

for  obstructing  access   to   place  of,  by  sewer  badly  constructed, 
703  n. 

injuries  to,  ground  of  special  damages  in  slander,  736  n. 

CARRIERS,  rule  of  damages  as  to,  104. 

is  determined  by  value  of  goods  at  place  of  destination,  99. 

how  value  of  goods  is  arrived  at,  104. 

consequential  damages  against,  138. 

damages  against,  for  refusal  to  carry,  99,  123. 

for  failure  to  deliver  machinery,  170,  525. 

rule  in  Hadley  v.  Baxendale,  126,  138  n.,  196. 

damages  against,  for  delay,  126, 138,  165,  177,  194,  196. 

claim  for  profits  against,  138,  145,  170. 

effect  of  notice  of  shipper's  intention,  126, 138  n.,  196. 

sufficiency  of  notice  to  charge,  138  n.,  196. 

duty  of  shipper  to  keep  down  damages  from  carrier's  breach  of 
contract,  165. 

deterioration  of  goods  carried  by,  165, 177,  181  n.}  182. 

liability  of,  beyond  route,  211,  220  n. 

loss  in  market  value  from  default  of,  104,  177,  181  n. 

mitigation  in  actions  against,  101,  125. 

acceptance  by  consignee  goes  in  mitigation,  101. 

when  market  value  not  the  measure  of  damages  against,  525  n. 

carriers  of  passengers,  152,  155. 

carriers  by  sea,  181  «..,  182. 

extent  of  liability  for  injuries  to  passengers,  152,  703,  708  n. 

liability  of,  for  injuries  causing  death,  793  et  seq. 
CASE  (Action  on  the),  lies  for  possibility  of  injury,  459  n. 

measure  of  damages  in,  for  injury  to  freehold,  662. 

f  >r  injury  by  backwater  caused  by  dam,  694. 

for  contaminating  well,  700. 

against  co-tenant  of  ferry,  for  share  of  earnings,  709. 
CATTLE.     See  Animals. 

CHARTER  PARTIES,  damages  in  actions  on,  111. 

CHECKS,  damages  of  depositor  against  banker  for  refusal  to  pay,  453,  460. 
CIVIL  LAW,  rule  of  damages  under,  for  breach  of  contracts  relating  to 
personal  property,  240. 


830  GENERAL   INDEX. 

COLLECTION,  agent  for,  damages  against,  for  negligence,  393. 
COLLISION,  actual  damages  only  allowed,  no  profits,  773. 

who  was  in  fault  for,  a  question  for  the  jury,  773. 

measure  of  damages  in  cases  of,  777  ».,  785,  793  n. 

compensation  for  loss  of  use  of  sunken  boat,  778. 

for  raising  and  repairing  sunken  boat,  778,  785. 

allowance  of  counsel  fees  in  actions  for,  785. 

rule  of  damages  where  both  vessels  are  in  fault,  789,  793  n. 

recoupment  of  damages,  cross  libel,  789. 

division  of  loss  where  both  vessels  are  in  fault,  789,  793  n. 

allowance  of  costs  in  actions  for,  789. 

allowance  of  costs  of  repairs,  793  n. 

expenses  in  retaining  crew  after,  793  n. 

in  attempting  to  save  cargo,  793  n. 
COMMON  CARRIERS.     See  Carriers. 
COMPENSATION  of  officer,  recoverable  for  intrusion  into  office,  711. 

as  rule  of  damages,  see  Compensatory  Damages. 
COMPENSATORY  DAMAGES,  must  be  full  indemnity,  in  action  of  tort, 
561. 

are  the  measure  in  actions  for  conversion  of  stock,  613. 

in  case,  for  injury  to  freehold,  662. 

for  injury  from  defect  in  highway,  685,  709  n. 
CONCURRING  NEGLIGENCE,  effect  of,  in  action  for  personal  injuries, 

703. 
CONSEQUENTIAL  DAMAGES,  not  usually  recoverable,  165. 

directly  caused  by  breach  of  contract,  recoverable,  165. 

when  recoverable  on  contracts,  284. 

against  carriers,  126. 

carriers  of  passengers,  152. 

not  allowed  for  breach  of  covenants  in  deeds,  3. 

as  to  counsel  fees,  4,  747,  752. 

are  recoverable  for  dishonoring  money  order,  463. 

for  breach  of  warranty  of  seed  measured  by  value  of  ordinary  crop, 
533,  540. 

in  trespass  for  destroying  dam,  657. 

in  actions  for  personal  injuries,  703,  708  n. 

exemplary  damages  recoverable  in  actions  for,  when,  744. 
CONSIDERATION  MONEY,  fixes  the  damages  in  cases  of  eviction,  40  w., 
85  n.,  86  n. 

recovery  of,  on  breach  of  covenant  of  seizin,  28. 
CONSIDERATIONS  other  than  money,  97. 

for  contract  not  to  practice  medicine  in  a  town  named,  444  n. 
CONTRACTS  to  convey  lands,  1,  36  ».,  40,  45,  86  n.,  87. 

where  vendor  has  no  title,  3,  45. 

real  damages  in,  as  against  vendee,  34. 


GENERAL   INDEX.  831 

CONTRACTS  -  con  tinned. 

for  sale  of  personal  property,  220  et  seq. 

for  delivery  of  property  in  future,  258. 

for  exchange  of  lands,  87. 

for  carriage  of  goods,  99  el  seq.,  123,  196. 

parol  contract  to  cultivate  farm,  226. 

to  build  and  deliver  ship  by  certain  date,  258. 

to  deliver  engine  for  a  speciric  purpose,  269. 

measure  of  damages  for  not  delivering  goods  pursuant  to  contract 
of  sale,  316. 

for  delivery  of  coal  in  monthly  portions,  325. 

for  article  to  be  manufactured,  331. 

for  several  deliveries,  325  et  seq. 

breach  of,  before  time  for  complete  performance,  336. 

of  sale,  general  rule  for  measure  of  damages  in  actions  on,  347. 

alternative  contract,  measure  of  damages  for  breach  of,  357. 

to  build  ship  according  to  specification,  363. 

deviation  by  consent,  measure  of  damages  in  case  of,  371. 

executory,  actions  on,  375. 

for  work,  acceptance  of  incomplete  performance  of,  375. 

implied  obligation  of  one  party  to  suffer  the  other  to  perform,  377. 

unauthorized ;  damages  for  breach  of  implied  warranty  of  author- 
ity, 384. 

of  hiring  ;  damages  for  breach  of,  407. 

stipulation  to  pay  sum  in  gross,  for  breach  of,  427. 

for  liquidated  damages,  sufficiency  of,  432,  435  n. 

in  restraint  of  trade,  441,  444  n. 

to  pay  money,  453  et  seq.,  499. 

to  pay  in  speciric  articles,  490  n. 

damages  for  breach  of  implied,  453. 

to  honor  money  order,  damages  for  breach,  463. 

acceptances,  475 

to  support  another  for  life,  damages  on  breach,  507. 

unconscionable  contracts,  511. 
CONTRIBUTORY  NEGLIGENCE.     See  Concurrinq  Negligence. 
CONVERSION.     See  Trover. 

CONVEYANCES,  breach  of  contract  to  convey,  1,  3,4,14,34,40,45, 
85  ».,  87. 

breach  of  covenants  in,  see  Covenants. 
CORPORATIONS,  exemplary  damages  for  willful  acts  of  agents  of,  746  n. 
COSTS,  when  recoverable  in  cases  of  warranty,  4,  526,  528  n. 

liability  of  vendor  for,  on  eviction  of  purchaser,  4. 

in  actions  against  carriers,  211. 

of  litigation  undertaken  in   consequence  of  implied  warranty   of 
authority  to  contract,  384. 


832  GENERAL   INDEX. 

COSTS — continued. 

of  former  action  for  breach  of  covenant,  when  recoverable,  490. 

of  improvident  defense,  not  recoverable,  526. 
COUNSEL  FEES,  when  not  allowed,  10  n. 

in  ejectment  suit,  4. 

in  Massachusetts,  10  n. 

allowed  to  plaintiff  in  action  for  destroying  dam,  747. 

in  actions  on  warranty  of  title,  528  n. 

not  allowed  in  action  for  infringement  of  patent  right,  751  ft. 

or  in  action  for  flowing  lands,  751  n. 

allowed  in  action  for  obstructing  highway,  752. 
COVENANTS,  to  do  particular  acts,  90. 

against  incumbrances,  11,  36,  90. 

for  quiet  enjoyment,  rule  as  to,  4,  11,  40  ft. 

in  respect  to  leases,  85  ft.,  86  n. 

of  seizin,  4,  14,  28,  97. 

of  warranty,  40  n. 

where  title  fails  in  part,  28. 

in  conveyances,  1. 

for  title,  4. 

to  pay  mortgage,  90. 

of  right  to  convey,  97. 

to  discharge  incumbrance  by  a  certain  day,  90. 

of  principal,  to  pay  note,  damages  of  surety  for  breach,  420. 

to  pay  money  in  gross  for  breach  of  contract,  damages  for  breach, 
427. 

to  pay  liquidated  damages  on  breach,  sufficiency  of,  432,  435  ft. 

release  of  part  performance  of,  435. 

not  coupled  with  condition,  435. 

liquidated  damages  for  breach  of  divisible,  441. 

in  restraint  of  trade,  441,  444  ft. 

liquidated  damages  for  breach  of  uncertain,  444. 

interpretation  of  covenant  for  liquidated  damages,  3,  449  ft. 

to  repair  ;  costs  of  former  action,  490. 

by  grantee  of  right  of  way,  to  repair  gate,  493. 

not  to  furfeit  life  policy,  damages  for  breach  by  insured,  496. 

of  lessee,  to  pay  taxes,  breach  of,  damages  on,  502. 

to  support  another  for  life,  damages  on  breach  of,  507. 

measure  of  damages  on   breach  of,  on   sale  of  horse,  526,  529, 
531  ft. 

of  seed,  533,  539  ft.,  540. 

of  diseased  cattle,  545,  546  ft. 

on  sale  of  corporate  stock,  with  warranty  of  value,  546. 
CUSTOM,  evidence  of,  to  limit  recovery  of  freight,  111. 


GENERAL   INDEX.  333 

DAMAGES,  under  the  modern  civil  law,  240. 

general  theory  of  measuring,  126,  136,  240,  269,  275,  347. 

substantial,  when  allowed  for  breach  of  contract,  275. 

for  breach  of  contract  to  convey  land,  1,  3, 36  n.,  40,  45,  85  n.,  86  n. 

in  trespass,  for  mesne  profits,  1,  4. 

must  be  certain,  269. 

and  within  contemplation  of  the  parties,  126,  269,  293,  302. 

as  to  covenants  of  warranty,  3,  4. 

in  cases  of  evictiou,  3,  4. 

on  covenant  for  quiet  enjoyment,  4,  14,  21,  40  n. 

on  covenant  of  seizin,  4,  21,  28,  45,  97.  * 

on  covenants  in  leases,  86. 

measure  of,  as  to  contracts  generally,  136. 

on  sales  of  chattels,  220  el  seq. 

as  against  common  carriers,  99  el  seq. 

on  refusal  of  vendee  to  receive  deed,  34. 

for  breach  of  contract  to  exchange  lands,  87. 

for  breach  of  covenant  to  discharge  incumbrance,  90. 

for  non-delivery  of  goods  sold,  316. 

for  delay  in  delivery.  325. 

measure  of,  for  refusal  to  deliver,  under  contract  for  several  deliv- 
eries, 336. 

when  penalties  recoverable  as,  350. 

measure  of,  for  breach  of  alternative  contract,  357. 

abatement  of,  for  insufficient  performance,  363. 

measure  of,  where  work  is  stopped  by  defendant,  377, 

for  breach  of  implied  warranty  of  authority  to  make  contract,  384. 

measure  of,  against  collecting  ngent,  for  neglect,  393. 

against  factor  for  unauthorized  sale,  302. 

on  money  loaned  on  stock  fraudulently  issued,  406  n. 

measure  of,  for  wrongful  discharge  of  servant,  407,  415. 

of  surety  against  principal,  for  breach  of  covenant  to  pay  note,  420. 

measure  of,  in  case  of  partial  loss  in  marine  insurance,  421. 

liquidated  damages  generally,  427  etseq.  See  Liquidated  Damages. 

stipulation  for  liquidated,  where  actual  are  uncertain,  435. 

nominal,  for  breach  of  implied  contract  to  pay  cheek,  453.' 

substantial,  for  dishonoring  cheek,  460. 

consequential,  for  dishonoring  money  order,  463. 

for  breach  of  contract  to  honor  acceptance,  475. 

measure  of,  in  actions  on  notes  payable  in  specific  articles,  481, 
490  n. 

measure  of,  for  breach  of  covenant  to  repair  gate,  493. 

for  breach  of  covenant  not  to  forfeit  life  policy,  496. 

for  breach  of  contract  to  pay  as  distinguished  from  contract  to 
indemnify,  499. 

against  lessee  on  breach  of  covenant  to  pay  taxes,  502. 
53 


834  GENERAL   INDEX. 

DAMAGES — continued. 

for  breach  of  covenant  to  support  another  for  life,  507. 

allowance  of  what  is  fairly  due  on  unconscionable  contract,  511. 

where  article  delivered  fails  to  conform  to  vendor's  representa- 
tions, 513. 

artificial  market  value  not  measure  on  non-delivery  of  goods  sold, 
515. 

for  breach  of  warranty  on  sale  of  horse,  526,  529,  531  n. 

on  sale  of  cabbage  seed,  consequential  damages,  533,  539  n. 

turnip  seed,  recovery  of  loss  of  profits,  540. 

on  warranty  of  diseased  cattle,  vendor  knowing  vendee's  intention 
of  placing  them  with  other  cattle,  545,  546  n. 

on  warranty  of  value  of  corporate  stock  sold,  546. 

speculative,  not  recoverable  to  cover  loss  of  possible  gain,  584. 

for  conversion  by  agent,  588. 

measure  of,  in  actions  for  recovery  of  personal  property,  597. 

measure  of,  for  conversion  of  stocks,  606,  613,  623  n. 

hypothetical,  not  recoverable,  620. 

for  conversion  of  property  sold  by  vendor  after  payment  of  price, 
624. 

in  other  cases  of  conversion,  624,  625,  627,  631,  634,  640, 646,  649  n. 

mitigation  of,  on  restoring  property  converted,  625. 

measure  of,  against  lessee  of  sheep,  for  conversion  of  wool,  627. 

expenses  of  bailor,  in  search  for  property  wrongfully  taken  from 
bailee,  630. 

in  trover,  for  deprivation  of  possession,  631. 

in  action  by  pawnbroker,  for  conversion  of  pledge,  640  n. 

for  refusal  to  deliver  to  vendee,  who  has  re-sold,  646. 

mitigation  of,  in  action  fur  conversion  of  grain,  649  n. 

for  value  of  use,  in  addition  to  value  of  property,  in  replevin,  650. 

in  action  against  sheriff  for  escape,  654. 

consequential,  for  destroying  dam,  657. 

for  continuing  nuisance,  658. 

in  case,  for  injury  to  freehold,  662. 

for  land  taken  for  municipal  purposes,  667. 

for  negligent  repairs  by  landlord,  670. 

against  railroad  company,  for  negligent  burning,  674. 

in  trespass,  for  mining  coal,  677,  684  n. 

in  trover,  for  coal  mined,  679. 

against  town,  for  defect  in  highway,  685. 

for  flowage,  allowance  for  benefit,  692. 

for  injury  to  plaintiff's  land  by  building  dam,  694. 

for  contamination  of  well,  700. 

against  railroad  company,  for  injury  to  passenger,  703. 

against  co-tenant  of  ferry,  for  share  of  earnings,  709. 

for  intrusion  into  public  office,  711. 


GENERAL   INDEX.  835 

DAMAGES— continued. 

for  violation  of  trade-mark,  716. 

for  infringement  of  patent,  718. 

special,  for  slander,  720,  722,  725,  736  n.,  737. 

excessive,  against  corporations,  738. 

criminal  punishment  no  bar  to  exemplary,  741. 

exemplary,  in  action  fur  consequential,  744. 

costs  and  counsel  fees,  747  et  seq. 

for  breach  of  promise,  757,  760,  766. 

for  seduction,  757,  760. 

for  collision,  773  et  seq. 

for  injuries  causing  death,  793  et  seq. 

against  telegraph  companies,  for  negligence,  &c,  809. 

after  suit  brought,  when  recoverable,  709. 
DEATH,  statutory  action  for  injuries  causing,  793  et  seq. 

measure  of  damages  in,  793,  795  n.,  803. 

recovery  for  loss  of  service,  793. 

for  funeral  expenses,  793. 

prospective  loss,  796. 

pecuniary  value  of  a  mother's  care,  796. 

evidence  in  action  for  causing,  796. 

right  to  sue,  of  widow  or  next  of  kin,  803. 
DEBTOR  AND  CREDITOR,  application  of  payments,  right  of  debtor  to 

direct,  427. 
DECEIT,  damages  for,  in  sale  of  soap-stone  quarry,  553. 

in  sale  of  partner's  interest  in  firm  property,  559. 

in  exchange  of  cattle,  559  n. 
DEEDS,  damages  for  breach  of  covenants  in,  1,  28. 
DEFECTS  in  highway,  damages  against  town  for,  685. 
DELAY  of  carrier,  damages  for,  138,  145,  151  n.,  165,  177,  194. 

of  carrier  by  sea,  182,  182  n. 

in  delivering  coal  in  monthly  portions,  325. 

in  delivery  of  articles  to  be  manufactured,  damages  for,  350. 
DELIVERY,  rule  of  damages  for  non-delivery  of  goods,  170, 220, 264  n.,  316. 

of  coal  in  monthly  portions,  325. 

waiver  of  delay  in,  of  goods  sold,  325. 

several  deliveries,  325  et  seq. 

damages  for  delay  in  several  deliveries,  350. 
DETENTION  of  goods  by  carrier,  181  n. 

of  property  replevied,  value  of  use  as  damages,  650. 

of  passengers  by  carrier,  152,  155. 
DEVIATION  from  contract,  by  consent,  371. 
DISCHARGE  of  servant,  damages  for  wrongful,  407. 

duty  to  seek  other  employment,  415. 


S36  GENERAL   INDEX. 

DURATION  OF  LIFE,  competency  of,  Northampton  tables  as  evidence  of, 

507. 
DUTY  of  party  to  contract  to  reduce  or  prevent  loss,  165,  238. 

of  carrier,  in  emergency,  182. 

of  discharged  servant,  to  seek  other  employment,  415. 

breach  of,  by  agent,  measure  of  damages  for,  588. 

EJECTMENT,  damages  in,  1, 

costs  of,  recoverable  in  action  for  mesne  profits,  4. 
ELECTION  of  form  of  action  for  work  and  labor,  371. 

on  executory  contract,  375. 

between  suit  for  penalty  and  action  for  breach  of  bond,  449  n. 
EMINENT   DOMAIN,  valuation  of  land  taken   by  municipal  corporation, 

667. 
EQUITY,  rule  of  damages  in,  in  suit  for  infringement  of  patent,  718. 
ESCAPE,  damages  for,  against  sheriff,  654. 

evidence  in  mitigation,  654. 
EVICTION,  damages  for,  4. 

under  the  civil  law,  240. 

in  New  York,  4,  85  ».,  240. 

from  demised  premises,  85  n. 

damages  for  partial,  28. 
EVIDENCE  of  consequential  injury,  152. 

in  aggravation  and  mitigation,  104. 

as  to  value,  104,  220. 

of  inconvenience  to  business  arising  from  breach  of  contract,  284. 

of  seller's  knowledge  of  buyer's  intent  to  resell,  302. 

in  action  for  delay  in  delivery  of  goods  sold,  325. 

in  action  for  breach  of  contract  for  several  deliveries,  336. 

of  value  of  goods  sold  contrary  to  instructions,  402. 

competency  of  Northampton  tables   as  to   probable  duration   of 
life,  507. 

of  value,  when  price  paid  is,  553. 

to  fix  value  in  actions  for  conversion  of  stocks,  606. 

in  mitigation  of  damages  in  action  for  escape,  654. 

in  action  for  removing  eaves  of  plaintiff's  house,  658. 

in  case,  for  contaminating  water-course,  662. 

in  case,  for  injury  caused  by  dam,  694. 

in  case,  for  contaminating  well,  700. 

of  criminal  punishment,  not  admissible  to  mitigate  damages  in  ac- 
tion for  assault,  741. 

of  seduction,  in  breach  of  promise,  to  aggravate  damages,  757. 

of  defendant's  wealth,  in  breach  of  promise,  760. 

of  intercourse  with  other  men,  760,  766. 

in  mitigation  of  damages  in  breach  of  promise,  766. 


GENERAL   INDEX.  83T 

EXCESSIVE  DAMAGES,  in  action  against  railroad  company  for  injuries 

to  employee,  738. 
EXCHANGE    OF   LANDS,  damages  for  breach  of  contract  to  exchange, 

87. 
EXECUTORY    CONTRACTS,  liability  of  vendor  for  breach  of,  40. 

for  work  and  labor,  abandonment  of  work,  375. 
EXEMPLARY  DAMAGES,  for  servant  wrongfully  discharged,  407. 

for  injuries  from  defects  in  highways,  when  not  allowed,  685. 

criminal  punishment  of  defendant  no  bar  to  recovery  of,  741. 

by  what  rule  estimated  in  actions  founded  on  malice,  743  n. 

when  granted  in  actions  for  consequential  damages,  744. 

for  willful  or  negligent  acts  of  servants,  746  n. 

in  actions  against  carriers,  747  n. 

for  injuries  to  passengers  on  railway  trains,  747  n. 

for  injuries  occasioned  by  collision,  747  n. 

in  action  for  tearing  down  dam,  747. 

in  actions  for  breach  of  promise,  757  et  seq. 
EXPENSES,  right  to  recover  sustained,  275,  309. 

in  actions  on  contract,  264  n.,  275. 

arising  from  breach  of  contract  to  repair  mill,  264  n. 

from  defect  in  chattel  purchased  from  plaintiff,  240. 

from  want  of  punctuality  in  delivering  threshing  machine,  275. 

in  handling  goods  after  partial  loss,  what  allowed,  421. 

what  recoverable  in  action  on  letter  of  credit,  475. 

prospective,  on  breach  of  contract  to  support  another  for  life,  507. 

of  protecting  vendee's   rights   under  warranty,  when  recoverable 
against  vendor,  526,  528  n. 

reward  paid  for  restoration  of  property  converted,  625. 

of  bailor,  in  search  of  property  wTrongfully  taken  from  bailee,  630. 

of  mining  coal,  not  allowed  in  trespass  for  mining  it,  677. 

of  being  cured,  in  action  for  personal  injuries,  703. 

of  replacing  dam  taken  down,  747. 

for  repairs  of  vessel  injured  by  collision,  778,  785,  793  n. 

FACTOR.     See  Principal  and  Agent. 
FAILURE  OF  TITLE,  partial.  28. 

loss  of  bargain  not  recoverable,  3,  45. 

even  though  vendor  knew  he  had  no  title,  79. 
FALSE  REPRESENTATIONS,  what  recoverable  as  damages  for,  549. 
FEELINGS.     See  Mental  Suffering  ;  Pain. 
FIRE  INSURANCE,  contribution,  810. 

general  average,  810. 

limit  of  contribution,  810. 

remote  loss,  810. 

open  policy  of,  812. 


838  GENERAL   INDEX. 

FIRE  INSURANCE— continued. 

rule  for  estimating  loss  payable  in  dollars  on  policy  made  here  on 
property  abroad,  812. 

merchandise  as  distinguished  from  property,  812. 

parties  may  stipulate  how  indemnity  shall  be  made,  817. 

the  measure  of  damages  agreed  on  by  parties  is  binding,  817. 

expense  of  repairing  and  replacing  property  not  proper  rule  for 
estimating  damages,  817. 

contract  to  measure  damages  not  affected  by  the  circumstance  that 
the  insured  property  is  patented,  817. 

contract  to  have  goods  insured  means,  in  the  absence  of  controling 
testimony,  contract  to  insure  at  their  value,  822. 

such  value,  in  case  of  loss,  is  the  measure  of  damages,  822. 
FLOWAGE  OF  LAND,  allowance  for  benefit  in  action  for,  692. 

actual  indemnity  for  damages  caused  by  the  rule,  692. 

defendant  prevailing,  not  entitled  to  counsel  fees,  751  n. 
FLUREAU  v.  THORNH1LL,  criticisms  on,  49  et  seq. 
FORBEARANCE  of  buyer  of  goods,  at  seller's  request,  316. 
FRAUDS,  English  statute  of,  as  to  sales  of  chattels,  316. 

fraud  as  a  defense,  375. 

rule  of  damages  in  case  of  false  representations  in  sale  of  chattels, 
513,  549. 

proximate  damages,  costs,  &c,  549. 
FREEHOLD,  damages  for  injuries  to,  G62. 
FREIGHT,  measure  of  damages  in  action  to  recover,  111. 

loss  from  increase  of,  by  delay  in  delivery,  325. 
FUTURE  DAMAGES.     See  Prospective  Damages. 

GAS  COMPANIES,  damages  for  refusal  to  furnish  gas,  284. 

measure  of  damages  against,  for  contaminating  well,  700. 
GOOD    FAITH,  nominal  damages  against  vendor,  on  ground  of,  in  case  of 

failure  of  title,  449  n. 
'GOODS,  measure  of  damages  for  non-delivery  of  goods  sold,  316. 

measure  of  damages  in  suits  on  notes  payable  in,  481.  490  n. 

depreciation  of  through  carrier's  fault,  182. 

HADLEY  v.  BAXENDALE,  rule  in,  126,  196,  262  ».,  265,  275. 

extent  of  notice  required  by,  138  n. 
does  not  apply  to  covenants  in  deeds,  136. 
rule  in,  as  to  remote  damages,  deemed  too  strict,  463. 
HEALTH,  damages  for  injuries  to,  from  neglect  of  carrier  of  passengers, 
155. 
injury  to,  not  ground  of  special  damages  in  slander,  730. 
See  also  Mental  Suffering  ;  Pain. 


GENERAL  IXDEX.  839 

HIGHWAYS,  damages  against  town,  for  defects  in,  G85. 

rule  of  damages  under  New  Hampshire  statute,  685. 

damages  of  husband  for  injury  to  wife,  loss  of  service,  709  n. 

recovery  over,  by  town,  for  defending  suit  for  obstructions,  752. 
HOPKINS  v.  GRAZEBROOK,  rule  cf  damages  in,  disapproved,  78  et  seq. 
HORSES.     See  Animals. 
HUSBAND,  damages  for  loss  of  service,  injury  of  wife,  709  n. 

for  slander  of  wife,  737. 

ILLNESS,  caused  by  carrier's  delay,  155. 

not  ground  of  special  damages  in  slander,  730. 
IMPLIED  CONTRACTS,  damages  for  breach  of,  453. 
IMPROVEMENTS,    when   allowed  for  breach  of  covenant  for  quiet  en- 
joyment, 14,  22,  25,  28  n. 

when  allowed  in  trespass  for  mesne  profits,  28  n. 

when  allowed  for  in  case  of  eviction,  14. 

valuation  of  land  taken  for  public,  667. 
INCUMBRANCES,  covenant  against,  11. 

rule  of  damages  as  to,  11,  36. 

damages  for  breach  of  covenant  to  discharge,  90. 

for  breach  of  covenant  against,  in  New  York,  36. 

nominal  damages,  11. 
INFANTS,  damages  for  personal  injuries  to,  708  n. 

loss  of  service  an  element  of  damages,  708  n. 
INJURY,  damages  for  actual,  in  case  of  cattle  damage  feasant,  493. 

to  real  property,  657  et  seq. 

damages  for  permanent,  from  continuing  nuisance,  662  n. 

remote  damages  not  recoverable  for  unintentional,  662. 

to  leasehold,  damages  for,  670. 

to  land,  by  mining  coal,  679. 

damages  for,  against  town  for  defect  in  highway,  685. 

to  plaintiff's  land,  by  building  dam,  694. 

to  personal  property,  different  measures  of  damages,  700. 

to  business,  by  negligent  construction  of  sewer,  703  n. 

to  the  person,  caused  by  negligence,  703,  708  n. 

continuing,  damages  after  suit  brought,  709. 

to  trade  or  business,  ground  of  special  damages  in  slander,  736  n. 

damages  for,  in  actions  for  collision,  773  et  seq. 

causing  death,  damages  in  actions  for,  793  et  seq. 
INSTRUCTIONS,  breach  of  by  agent,  damages  for,  402. 

to  jury  as  to  computing  damages,  662,  700. 
INSURANCE,  breach  by  insured  of  covenant  not  to  forfeit  life  policy,  dam- 
ages for,  496. 

recovery  of,  no  bar  to  action  against  railroad   for  burning  build- 
ing, 674. 


84:0  GENERAL   INDEX. 

INSURANCE— continued. 

Insurance,  marine.     See  Marine  Insurance. 

Insurance,  fire.     See  Fire  Insurance. 
INTENT  of  parties  to  stipulation  for  liquidated  damages,  435,449  n. 

to  commit  rape,  action  for  assault  with,  741. 
INTEREST,  in  case  of  breach  of  covenants  for  title  to  real  estate,  4,  36, 40  n. 

in  case  of  sales  of  chattels,  220. 

on  purchase  money  of  real  estate,  4,  40  n.,  86  n. 

in  case  of  breach  of  covenant  to  discharge  incumbrance,  90. 

on  money  loaned  on  stock  fraudulently  issued,  406  n. 

on  accounts  stated,  and  liquidated  sums,  525,  526  n. 

may  be  computed  up  to  time  of  entry  of  judgment,  526  n. 

recoverable  on  value  of  converted,  lost,  or  destroyed  property, 
526  n. 

upon  market  value  of  property  replevied,  597. 

on  value  of  stocks  converted,  606. 
INTERMEDIATE  VALUE,  rules  of   higher,  in  actions  for  conversion, 
561  el  seq. 

in  conversion  by  agent,  588. 
INTRUSION  INTO  PUBLIC  OFFICE,  measure  of  damages  against  in- 
truder, 711. 

whole  salary  recoverable,  711. 

JUDGMENT,  by  default,  in  action  for  breach  of  alternative  contract,  357. 

in  former  action,  when  no  bar,  493. 

against  insurers,  no  bar  to  suit  against  railroad  company  for  burn- 
ing building,  674. 
JURISDICTION,  of  admiralty,  in  collision  cases,  773  et  seq. 

to  allow  counsel  fees,  costs,  &c,  747  et  seq.,  785,  789. 
JURY,  province  of,  in  measuring  damages  to  personal  property,  700. 

what  may  consider  in  slander,  738  n. 

duty  of,  in  estimating  exemplary  damages,  743  n. 

may  consider  motive  in  action  for  willful  negligence,  744. 

no  right  to  consider  whether  verdict  will  carry  costs,  747. 

cannot  give  counsel  fees  in  action  for  infringement  of  patent,  751  n. 

or  for  overflowing  lands,  751  n. 

duty  of,  in  actions  for  breach  of  promise,  757  et  seq. 

LADING,  bills  of,  damages  on,  182. 

LAND,  valuation  of,  taken  by  municipal  corporation,  667. 

measure  of  damages  for  trespass  on,  657,  662  n. 

for  nuisances  in  respect  to,  658,  662  n. 

damages  for  failure  of  title  to,  3,  28,  36  n.,  45. 

trespass  for  mining  coal  in,  677,  684  n. 

trover  for  coal  mined  in,  679. 


GENERAL   INDEX.  841 

LAND — continued. 

action  for  flooding,  allowance  for  benefits,  692. 

for  injury  to,  by  building  dam,  694. 
LANDLORD  AND  TENANT,  damages  of  tenant,  on  landlord's  failure 
to  give  possession,  $6  n. 

or  make  repairs,  86  n.,  490. 

damages  on  breach  of  lessee's  covenant  to  pay  taxes,  520. 

trover  against  lessee  of  sheep,  for  conversion  of  wool,  627. 

damages  against  landlord  for  negligent  repairs,  670. 
LEASES,  covenant  of  quiet  enjoyment  implied  from,  85  n. 

damages  for  breach  of,  85  ?i.,  86  n. 

lessee's  action  for  value  of  lease  after  eviction,  85  n. 

damages  for  breach  of  covenant  to  repair,  490. 

damages  of  lessee  for  injury  to  leasehold,  670. 
LETTER  OF  CREDIT,  measure  of  damages  in  action  on,  475. 
LIQUIDATED  DAMAGES,  stipulation  to  pay  gross   sum   for  breach  of 
contract,  427. 

stipulations  of  various  degrees  of  importance,  432. 

for  breach  of  minor  and  unimportant  parts  of  the  agreement,  435  n. 

stipulations  where  damages  are  uncertain,  435. 

when  granted  for  breach  of  divisible  covenant,  441. 

for  breach  of  covenant  not  to  practice  medicine,  444  n. 

granted  where  damages  would  be  uncertain  and  difficult  of  accurate 
computation,  444. 

for  breach  of  covenant  not  to  disclose  secrets  of  business,  444. 

when  recovery  is  limited  by  penalty,  449  n. 

interpretation  of  covenant  for,  449  n. 

for  breach  of  stipulation  not  to  publish  rival  newspaper,  435. 
LITIGATION,  allowance  of  costs  and  expenses  of,  211,  384,  490,  7A7  etseq. 

in  actions  against  carriers,  21 1 . 
LOSS,  prevention  of,  duty  of  contracting  party  as  to,  165. 

plaintiff's  duty  to  reduce  or  prevent,  165,  236. 

of  bargain,  in  contracts  to  convey  land,when  compensated,  3,45,  85  n. 

remote  loss  not  ground  for  damages,  J  45. 

direct  loss,  only,  recoverable,  165,  275. 

of  profits,  when  recoverable  from  carrier,  170. 

in  market  value,  from  carrier's  delay,  181  n. 

recoupment  for  loss  of  profits  in  action  for  price  of  steamboat,  240. 

direct  loss  for  breach  of  contract  to  deliver  threshing  machine,  275. 

loss  occasioned  by  refusal  of  defendant  to  furnish  gas,  284. 

from  increase  of  freight  by  delay  in  delivery,  325. 

when  actual,  the  measure  of  damages,  347. 

how  computed  in  marine  insurance,  partial  loss,  421. 

of  business,  caused  by  dishonoring  money  order,  463. 


84:2  GENERAL   INDEX. 

LOSS — continued. 

of  profits,  when  recoverable  in  trespass,  657. 

by  tenant,  in  consequence  of  negligent  repairs  by  landlord,  670. 

what  recoverable  against  railroad  company  for  burning  plaintiff's 

building,  674. 
of  profits  of  mill,  by  building  clam  lower  down,  694. 
of  prospective  profits,  by  obstruction  of  access  to  place  of  busi- 
ness, 703  n. 
of  time,  or  ability  to  work,  in  consequence  of  personal  injuries,  703. 
of  services  of  person  injured,  709  n. 

of  society  of  husband,  in  action  by  wife,  for  slander,  725,  737. 
of  hospitality  of  friends,  in  action  for  slander,  737. 
of  probable  profits,  not  allowed  in  collision,  773,  777  n. 
of  use  of  sunken  vessel,  in  collision  cases,  778. 

MARINE  INSURANCE,  extent  of  insurer's  liability,  partial  loss,  421. 

what  will  be  deemed  a  loss  by  sea  damage,  421. 
MARKET  VALUE,  how  determined,"l04,  220. 

of  goods  lost  by  carrier,  104. 

or  delayed  by  carrier,  177,  181  n. 

for  breach  of  contract  to  deliver  goods  sold,  220. 

damages  where  article  has  no  market  value,  247,  402. 

fall  in  market  price,  when  element  of  damages,  275. 

when  difference  between,  and  contract  price,  the  measure  of  dam- 
ages, 347. 

how  far  measure  of  damages  in  case  of  partial  loss,  in  marine  in- 
surance, 421. 

rule  as  to,  on  sales  of  chattels,  513  et  sej. 

artificial,  not  measure  in  case  of  non-delivery  of  goods  sold,  515. 

is  a  question  for  the  jury,  515. 

compensatory  damages  in  addition  to,  561. 

time  of  fixing,  in  case  of  conversion  by  agent,  588,  613,  623  n. 

in  action  for  recovery  of  personal  property,  597. 
MARKHAM  v.  JAUDON,   rule  of  damages  in  for  conversion  of  stocks, 

overruled,  613. 
MARRIAGE,  action  for  breach  of  promise  to  marry,  757  et  seq. 
MASTER  AND  SERVANT,  damages  for  wrongful  discharge,  407. 

duty  of  discharged  servant,  offer  to  perform,  415. 

exemplary  damages  for  negligence  of  servants,  747  n. 
MENTAL  SUFFERING,  is  an  element  of  damages  in  actions  for  personal 
injuries  caused  by  negligence,  703. 

must  be  immediate  consequence  of  injury,  703. 

not  ground  of  special  damages  in  slander,  730. 


GENERAL   INDEX.  843 

MESNE  PROFITS,  damages  in  action  for,  1. 

recovery  of  costs  of  ejectment  suit  in  action  for,  1. 
MILL-DAMS,  consequential  damages  in  trespass  for  destroying.  G57. 

in  case,  for  obstructing  mill-pond,  662. 

for  back  water  stopping  mill,  694. 

exemplary  damages  for  tearing  down,  747. 
MITIGATION  OF  DAMAGES,  as  to  common  carriers,  101  et  seq. 

where  full  damages  would  be  ruinous,  125. 

where  goods  are  delivered  to  owner,  101. 

against  agent,  for  failure  to  collect,  393. 

against  factor,  for  unauthorized  sale,  402. 

in  trover,  by  restoration  of  property,  625. 

other  grounds  ©f,  in  trover,  631,  640,  649  n. 

in  action  against  sheriff,  for  escape,  654. 

in  trespass,  for  mining  coal,  677. 

allowance  for  benefit  to  land,  in  action  for  flooding,  692. 

in  action  for  intrusion  into  public  office,  711. 

action  for  assault,  criminal  punishment  not  evidence  in,  741. 

in  action  for  breach  of  promise,  760. 
MONEY  LOANED  on  stock  fraudulently  issued,  by   railroad    company, 
damages  for,  406  n. 

interest  on  account  stated  for,  525. 
MORTGAGE,  damages  for  breach  of  covenant  to  pay,  90. 
MOTIVE,  subsequent  acts  of  defendant  as  proof  of,  in  action   for    slander, 
738  n. 

may  be  considered  in  fixing  damages  in  actions   fur   injuries  occa- 
sioned by  negligence,  744. 
MUNICIPAL  CORPORATIONS,  estimation   of  value  of  land  taken  by, 
667. 

damages  against,  for  negligent  construction  of  sewer,  703  n. 

NEGLIGENCE,  in  transporting  goods,  101,  104,  177. 

of  carrier  of  passengers,  152,  703. 

of  carrier  by  sea,  182,  182  n. 

of  collecting  agent,  damages  for,  393. 

damages  against  sheriff,  for  escape,  654. 

of  landlord,  in  making  repairs,  damages  for,  670. 

of  railroad  company,  in  burning  plaintiff's  building,  674. 

personal  injury  caused  by,  damages  for,  703. 

effect  of  concurring  negligence,  703. 

special  damages  for,  703,  708  n. 

exemplary  damages  recoverable  for  willful,  744. 

liability  for  injuries  by,  causing  death,  793  el  seq, 
NEGOTIABLE  PAPER.     See  Bills  of  Exchange  ;  Promissory  Notes. 


S44  GENERAL   INDEX. 

NOMINAL  DAMAGES,  when  recovery  restricted  to,  145. 

in  actions  on  covenants  against  incumbrances,  11,  18  n. 

in  actions  against  carriers,  125,   145. 

for  breach  of  implied  contract  to  pay  money,  453. 

when  the  measure  in  trover,  634. 

for  failure  to  transmit  telegraphic  dispatch,  809. 
NON-DELIVERY  OF  GOODS,  rule  of  damages  for,  170,  220,  264  n. 

delay  in  delivery  of  coal  in  monthly  portions,  325. 

artificial  market  value  not  measure  in  action  for,  515. 
NON-NEGOTIABLE  INSTRUMENTS,  notes  payable  in  specific  articles, 

measure  of  damages  on,  481,  490  n. 
NOTES.     See  Promissory  Notes. 
NOTICE,  to  carrier,  of  shipper's  object,  to  increase  liability,  126,  13S  «.,  196. 

to  charge  party  to  contract  with   special  consequences  of  breach, 
331. 

to  vendor,  of  vendee's  intended  use  of  chattel  purchased,  545. 
NUISANCES,  continuing,  measure  of  damages,  658. 

for  removing  eaves  of  house,  658. 

repeated  actions  for,  658,  662  n. 

OFFICE,  damages  for  unlawful  intrusion  into,  711. 

quo  warranto  against  intruder,  711. 

whole  salary  of,  recoverable,  711. 
OFFICERS,  recovery  of  salary  by,  against  intruder,  711. 

quo  warranto  to  try  title  to  office,  711. 

PAIN  is  an  element  of  damage  in  actions  for  personal  injuries,  703. 

damages  for  future,  may  be  recovered,  708  n. 

future,  limited  to  what  must  necessarily  result  from  injury,  708  n. 

mental,  not  ground  of  special  damage  in  slander,  730. 
PAROL  CONTRACTS  concerning  land,  220. 

PART  PERFORMANCE,  of  contract  for  work,   abatement  of  price  for, 
363. 

damages  for,  when  full  performance  is   prevented   by   defendant, 
371,377. 

recoupment  for,  in  action  for  price  of  work,  375. 

of  covenant,  release  of,  435. 
PARTIAL  EVICTION,  measure  of  damages  for,  28. 
PARTIAL  LOSS.     See  Loss  ;  Marine  Insurance. 
PASSENGERS,  damages  for  delaying,  152,  155. 

damages  for  injuries  to  health,  155. 

See,  also,  Negligence  ;  Railroad  Companies. 
PATENTS,  measure  of  damages  for  infringement,  718. 

recovery  of  profits  in  cases  of  infringement,  718. 

counsel  fees  no  part  of  damages  in  action  for  infringement,  751  n. 


GENERAL   INDEX.  845 

PAYMENT,  application  of,  right  of  debtor  to  direct,  427. 

of  money  value,  whether  it  satisfies  note  payable  in  goods,  481, 
490  n. 
PENALTIES,  when  recoverable  for  delay  in  delivery,  350. 

when  stipulation  to  pay  sum  in  gross  for    breach  of  contract,  is  a 

penalty,  427. 
should  be  regarded  as  stated  damages,  430  n. 
distinction  between  liquidated  damages  and,  435. 
relief  against,  on  performance  after  default,  450. 
PERFORMANCE,    several  deliveries,  breach  before  time  for  complete, 
336. 
of  alternative  contract,  357. 
abatement  of  price  for  insufficient,  363. 
damages  for  preventing  plaintiff  from  performing,  371,  377. 
part,  of  contract  to  build  house,  375. 
implied  obligation  to  permit,  377. 
incomplete,  prevention  by  other  party,  377. 
offer  of,  by  discharged  servant,  415. 
partial,  of  covenant,  release  of,  435. 
PERSONAL  INJURY,  mental  distress  from,  compensated,  155. 
extent  of  compensation  for,  703. 
loss  of  bodily  and  mental  powers,  703. 
medical  expenses,  703. 
damages  for  future  pain  or  disability,  708  n. 
loss  of  future  services  of  infant  injured,  708  n. 
loss  of  service  of  wife  injured,  709  n. 
injuries  from  defective  highway,  709  n. 
PERSONAL  PROPERTY,  measure  of  damages  in  actions  for  recovery 
of,  561,  597. 
for  conversion  of,  606  et  seq. 

damages  for  deprivation  of  right  of  possession  of,  640,  640  n. 
for  injury  to,  different  measures  of  damages,  700. 
PLEADING,  declaration  in  action  for  preventing  plaintiff  from  fulfilling 

building  contract,  377. 
PREVENTING  LOSS,  duty  of  party  to  contract  to  reduce  damages,  165, 
236. 
of  carrier,  in  emergency,  182. 

of  discharged  servant,  to  seek  other  employment,  415. 
PRINCIPAL  AND  AGENT,  damages  against  agent  for  breach  of  implied 
warranty  of  authority  to  contract,  3S4. 
damages  against  agent  for  failure  to  collect,  393. 
damages  against  factor  for  unauthorized  sale,  402. 
liability  of  agent  for  breach  of  instructions,  40^2. 
rule  of  damages  in  cases  of  conversion  by  agent,  588. 
conversion  of  stock  by  broker,  606,  613,  623  n. 


846  GENERAL  INDEX. 

PRINCIPAL   AND   SURETY,  on  promissory  note,  damages  of  surety 

against  principal,  420. 
PROFITS,  principle  of  allowance  of,  247,  269. 

of  vessels,  when  recoverable,  240,  258. 

in  case  of  breach  of  agreement  to  cultivate  farm,  2-6. 

in  action  for  defects  in  engine  sold,  275  n. 

when  recovered  generally,  240,  247. 

loss  of,  when  allowed  in  damages,  90,  247,  269,  275  n.,  347. 

loss  of,  when  allowed  in  cases  of  sales,  247. 

loss  of,  must  be  contemplated,  to  be  recoverable  in  contract,  247. 

loss  of,  how  proved,  90. 

loss  of,  for  not  delivering  machine,  269,  275  n. 

loss  of,  for  not  delivering  proposal  for  contract,  145. 

loss  of,  on  breach  of  covenant  to  discharge  mortgage,  90. 

recoupment  of,  for  breach  of  contract  to  build  ship,  258. 

contingent,  generally,  269. 

contingent,  in  actions  for  price  of  steamboat,  240. 

direct,  145. 

on  construction  of  mill,  by  reason  of  steam  engine  not  being  fur- 
nished, 264  n. 

loss  of,  by  carrier's  neglect  to  deliver  shaft  of  engine,  126. 

how  far  recoverable  for  carrier's  delay,  126,  T45,  151  n.,  170. 

loss  of,  in  not  being  allowed  to  fulfill  contract,  371. 

when  speculative,  not  recoverable,  371. 

loss  of,  when  recoverable  in  trespass,  657. 

in  case,  for  backwater  caused  by'dam,  694. 

prospective,  when  not  recoverable,  703  n. 

now  generally  allowed  for  injuries  to  property,  703  n. 

recovery  of,  in  cases  of  violation  of  trade-marks,  716. 

what  recoverable  in  action  for  infringement  of  patent,  718. 

probable,  not  allowed  in  cases  of  collision,  773,  777  n. 
PROMISSORY  NOTES,  damages  of  surety  against  principal  for  breach  ot 
covenant  to  pay,  420. 

payable  in  specific  articles,  481,  490  n. 
PROSPECTIVE  DAMAGES,  what,  when  allowed,  151  n. 
for  failure  of  title  to  land  sold,  3,  14,  45. 

on  breach  of  contract  to  support  another  for  life,  507. 

not  allowed  for  obstructing  access  to  place  of  business,  703  n. 

now  generally  allowed  for  injuries  to  property,  733  n. 

are  proper  in  actions  for  personal  injuries,  703,  708  n. 

for  injuries  causing  death,  793  el  seg. 
PROTEST,  expenses  of,  recoverable  in  action  on  letter  of  credit,  475. 
PROXIMATE  DAMAGES,  in  actions  against  carriers,  211. 
what  are,  in  actions  for  false  representations,  549. 

for  injuries  from  defects  in  highways,  685. 


GENERAL   INDEX.  847 

PUBLIC  IMPROVEMENTS.     Estimation  of  value  of  land  taken  for,  667. 

damages  for  injuries  caused  by  negligent  construction,  703  n. 
PUNITIVE  DAMAGES.     See  Exemplary  Damages. 
PURCHASE  MONEY  and  interest,  when  measure  of  damages,  4. 

in  actions  for  breach  of  contracts  for  real  estate,  4. 

for  breach  of  covenants  of  warranty,  40  n. 

fixes  damages  in  cases  of  eviction,  40  n.,  85  n.,  86  n. 

for  breach  of  covenant  of  seizin,  28. 

QUANTUM  MERUIT,  in  assumpsit  for  work  and  labor,  375. 

for  part  performance,  375. 
QUIET  ENJOYMENT,  rule  for  breach  of  covenant  for,  in  New  York,  14. 

in  England,  85  n. 

implied  from  lease,  in  New  York,  85  n. 
QUO  WARRANTO,  damages  in,  for  intrusion  into  public  office,  711. 

RAILWAY    COMPANIES,  damages  against,  for  negligence  in   burning 
plaintiff's  building,  674. 

for  injuries  to  passengers,  703. 

damages  for  future  pain  or  disability,  70S  n. 

excessive  damages  in  actions  against,  738. 

liability  of,  for  injuries  causing  death,  793,  795  n.,  79G,  803. 
REAL  COVENANTS.     See  Covenants. 

REAL  ESTATE,  agreement  for  sale  and  purchase  of,  damages  on  breach 
of,  1,3,4,  11,  14. 

breach  of  contract  to  convey,  in  general,  1,  3. 

rule  of  damages  in  regard  to,  where  no  fraud,  3,  45. 

failure  to  convey  for  want  of  title,  3,  26. 

trespass  for  injuries  to,  damages  in,  657  et  seq. 

valuation  of,  taken  for  municipal  purposes,  667. 

injury  to,  by  building  dam,  6W4. 
RECOUPMENT,  in  action  for  price  of  steamboat,  210,  264  n. 

of  damages  on  former  trial,  363. 

in  actions  for  work  and  labor,  375. 
RELEASE  of  part  performance  of  contract,  435. 
REMOTE  DAMAGES,  in  actions  against  carriers,  145,  211. 

on  contract  to  repair  threshing  machine  in  time  for  harvest,  265. 

on  failure  to  deliver  property  sold,  309. 

recoupment  of,  264  n. 

what  are,  in  suit  for  dishonoring  money  order,  463. 

not  recoverable  for  unintentional  injuries,  662. 
RENTS  AND  PROFITS,  recovery  of,  in  ejectment,  1. 

damages  in  actions  for,  1. 

costs  of  ejectment  suit,  in  action  for,  1. 


84:8  GENERAL   INDEX. 

REPLEVIN,  plaintiff  entitled  to  damages  on  election  to  take  judgment  for 
value,  561. 

computation  of  value  in,  561. 

when  measure  of  damages  is  same  as  in  trover,  561. 

measure  of  damages  where  property  is  of  fluctuating  value,  597. 

damages  for  value  of  use  in  addition  to  value  of  property,  650. 
RESALE,  vendor's  right  of,  where  price  not  paid,  230. 

whether  within  contemplation  of  contracting  parties,  302. 

effect  of  seller's  knowledge  of  buyer's  intent  to  resell,  309. 

damages  on  vendee's  warranty,  on  resale  of  goods  purchased  with 
warranty,  526. 

damages  for,  as  a  conversion,  624,  631. 

damages  of  vendee,  who  resells  before  delivery,  against  vendor 
for  refusal  to  deliver,  646. 
RESCISSION  by  one  party  against  the  other's  consent,  371. 
RETURN  of  property  converted,  to  mitigate  damages,  625. 
REWARD  for  return  of  property  converted,  an  item  of  damages,  625. 
RULE  OF  COMPUTING  as  to  breaches  of  contract,  generally,  269. 

contracts  for  real  estate,  3,  45. 

in  actions  for  work  and  labor,  371. 

of  higher  intermediate  value,  in  cases  of  conversion,  561,  613. 

computing  the  damages  in  replevin,  561. 

in  case  of  conversion  of  stocks,  606,  613,  623  n. 

or  other  personal  property,  624,  625,  627,631,  634,  640,  646. 

as  to  land  taken  for  municipal  purposes,  667. 

for  injuries  from  defects  in  highways,  685. 

in  action  for  flooding  land,  692. 

for  lessening  mill-owner's  supply  of  water,  700  n. 

various  rules  in  cases  of  injury  to  personal  property,  700. 

in  actions  for  personal  injuries,  703  et  seq. 

estimating  exemplary  damages,  743  n. 

in  actions  for  breach  of  promise,  757  et  seq. 

in  actions  for  injuries  causing  death,  793  et  seq. 

SALE  OF  CHATTELS,  damages  on,  as  against  vendor,  220,  275. 
vendee,  230. 
rule  in  New  York,  220. 

where  article  is  to  be  manufactured,  230,  258,  264  n.,  302. 
loss  of  profits  on,  264  n. 
implied  warranty  of  ownership,  51. 
according  to  modern  civil  law,  2i0. 
refusal  of  vendee  to  accept  goods,  230. 
duty  of  plaintiff  to  prevent  avoidable  injury,  236. 
action  for  price  of  steamboat,  240. 


GENERAL   INDEX.  849 

SALE  OF  CHATTELS— continued, 

allowance  to  buyer  for  defects,  in  action  for  price,  240. 

damages  where  vendor  understood  a  purpose  to  be  intended  which 
was  not  that  intended  by  vendee,  293. 

effect  of  vendor's  knowledge  of  vendee's  intent  to  resell,  309. 

damages  for  non-delivery  of  goods,  316. 

statute  of  frauds  as  to,  in  England,  316. 

of  coal,  to  be  delivered  in  monthly  portions,  325. 

waiver  of  delay  in  delivery,  by  receiving  goods,  325. 

damages  for  refusal  to  deliver,  336. 

measure  of  damages  for  failure  to  deliver,  347,  646. 

damages  in  actions  on  warranties,  363. 

by  factor,  contrary  to  instructions,  damages  for,  402. 

measure  of  damages,  market  value,  513. 

measure  of  damages  for  non-delivery,  artificial  market  value  not 
the  measure,  515. 

of  personal  property,  with  warranty  generally,  526  et  seq, 

special  damage  for  breach  of  warranty  of  horse,  529,  531  n. 

consequential  damages  for  breach  of  warranty  of  cabbage  seed,  533, 
539  n. 

recovery  of  loss  of  profits  for  breach  of  warranty  of  seed  sold, 
540. 

consequential  damages  on  warranty  of  diseased  cattle  as  sound, 
545,  546  n. 

damages  for  breach  of  warranty  on  sale  of  corporate  stock,  546. 

in  trover,  against  vendor  for  wrongful  resale,  624,  631. 
SALE  OF  LAND.     See  Vendee  ;  Vendor. 
SEDUCTION,  under  breach  of  promise,  aggravates  damages,  757,  760. 

mitigation  of  damages  in  action  for,  760. 

damages  for  mortification  and  distress,  757. 
SEIZIN,  covenant  of,  damages  for  breach,  14,  17  n.,  28,  97. 
SEIZURE,  wrongful,  mitigation  of  damages  for,  640. 
SERVANTS.     See  Master  and  Servant. 
SERVICES,  damages  under  contracts  for,  discussed,  226. 

for  work  according  to  specifications,  363. 

recovery  on  common  counts,  371. 

abandonment  of  work  defeats  recovery,  375. 

assumpsit  for  part  performance,  recoupment,  375. 

implied  obligation  in  contract  for,  to  permit  performance,  377. 

stoppage  of  work  by  defendant,  377. 

constructive,  after  wrongful  discharge  of  servant,  407. 

liquidated  damages  for  breach  of  contract  for,  427. 
SEVERAL  DELIVERIES,  of  coal,  in  monthly  portions,  325,  336. 

special  damages  for  breach,  331. 
54 


850  GENERAL   INDEX. 

SEVERAL  DELIVERIES— continued. 

breach  before  time  for  complete  performance,  336. 

of  articles  to  be  manufactured,  350. 

damages  for  delay  in,  350. 
SHERIFFS,  damages  against  for  escape  of  prisoner,  654. 

mitigation,  evidence  in,  654. 
SLANDER,  special  damages  for,  720  et  seq. 

dismissal  of  plaintiff  before  end  of  term  of  service  as  evidence  of 
special  damages,  720. 

repetition  of  defamatory  words,  722. 

whether  wife  can  maintain,  for  words  causing  loss  of  consortium 
of  husband,  725,  737. 

by  trader,  for  words  causing  injury  to  his  business,  736  n. 

for  imputation  of  unchastity,  737. 

special  damages  for  loss  of  hospitality  of  friends,  737. 

effect  of  defendant's  subsequent  acts  as  evidence  of  malice,  738  n. 
SPECIAL  DAMAGES,  for  breach  of  warranty  on  sale  of  horse,  loss  on 
resale,  529,  531  n. 

for  refusal  to  deliver  to  vendee,  who  has  resold,  646. 

for  personal  injuries  caused  by  negligence,  703,  708  n. 

not  allowed  on  account  of  plaintiff's  calling  or  profession,  703. 

in  actions  for  slander,  720  el  seq. 
SPECIFIC  PERFORMANCE,  when  damages  granted  in  action  for,  40. 
SPECULATIVE  DAMAGES,  not  recoverable  for  unintentional  injuries, 
662. 

nor  in  replevin  or  trover,  561,  613. 
STATUTES  of  frauds,  as  to  sales,  in  England,  316. 

of  New  Hampshire,  giving   damages   for  injuries  from  defects  in 
highways,  685. 

allowing  actions  for  injuries  causing  death,  793  et  seq. 
STOCKS,  damages  for  breach  of  warranty  on  sale  of,  546. 

measure  of  damages  for  conversion  of,  606,  613,  623  n. 
SUBSTANTIAL  DAMAGES,  of  drawer  of  check,  against  banker,  for  dis- 
honoring it,  460. 
SURETY.     See  Principal  and  Surety. 

TAXES,  damages  on  breach  of  lessee's  covenant  to  pay,  502. 
TELEGRAPH  COMPANIES,  liability   for  loss  occasioned  by  error  in 
dispatch,  809. 
for  failure  to  transmit,  809. 
nominal  damages  against,  809. 

responsible  only  for    damages  naturally  resulting  from  default, 
809. 
TIME  for  delivery  of  goods,  177. 

of  detention,  when  recovered  for,  152. 


GENERAL  INDEX.  851 

TIME — continued. 

of  computing  market  value  of  goods  sold,  220. 

damages  for  failure  to  deliver  goods  sold  in,  325. 

for  complete  performance,  breach  before,  336. 

for  servant  to  sue  for  wrongful  discharge,  407. 

of  valuation    of  property   sold   under    false    representations  by 
vendor,  513. 

to  limit  inquiry  as  to  market  price  of  property  converted,  588. 

of  fixing  market  value  in  replevin,  597. 

of  estimating   value  in  case  of  conversion   of  stocks,  606,  613, 
623  n. 

of  estimating  value  in  trover,  624. 

of  limiting  damages  in  actions  for  personal  injuries,  703,  708  n. 

may  be  considered  in   fixing  damages  for   personal  injuries,  even 
though  interest  not  recoverable,  709  n. 
TITLE,  not  implied  in  sale  of  land,  3,  45,  51. 

damages  for  failure  of,  3,  28,  36  n.,  45. 

damages  for  breach  of  covenants  for,  3,  28. 

nominal  damages  for  breach  of  implied  warranty  of,  in  absence  of 
bad  faith,  449  n. 

to  public  office,  quo  warranto  to  try,  711. 
TORT,  exemplary  damages  in  actions  of,  747. 

action  of,  against  banker  for  refusal  to  pay  check,  453. 

case  lies  for  possibility  of  injury,  459  n. 

compensatory  damages  in  actions  of,  561,  662. 

right  to  recover  interest,  561. 

damages  for  injuries  to  real  property,  657  et  seq. 

case,  for  injury  from  building  dam,  694. 

for  contaminating  well,  700. 

actions  for  personal  injuries,  703  et  seq. 

allowance  of  counsel  fees  in  actions  of,  747. 
TOWNS,  damages  against,  for  defects  in  highways,  685. 

action  against,  by  husband,  for  injury  to  wife,  709  n. 

allowance  of  legal  expenses  of  defending  highway  suit,  ^52. 
TRADE-MARKS,  measure  of  damages  for  violation  of,  716. 

recovery  of  profits  made  by  defendant,  716. 
TRANSPORTATION.     See  Carriers;  Railway  Companies. 
TRESPASS,  for  mesne  profits,  1. 

recovery  of  loss  of  profits  in,  657. 

consequential  damages  for  destroying  dam,  657. 

measure  of  damages  in  quare  clausum,  657  et  seq. 

for  continuing,  662  n. 

for  mining  coal,  677,  684  n. 

counsel  fees  not  allowed  in,  747. 


852  GENERAL   INDEX. 

TRIAL,  instructions  to  jury  as  to  computing  damages,  generally,  662. 

in  case  for  obstructing  flow  of  water,  692. 

for  contaminating  well,  700. 

when  damages  may  be  computed  to  time  of,  709. 
TROVER,  conversion  of  goods  of  retail  dealer,  retail  price  the  measure  of 
damages,  525. 

interest  recoverable  on  value  of  property  converted,  526  n. 

rules  of  higher  intermediate  value  in,  561,  573. 

measure  of  damages  in,  571,  624,  625,  631. 

market  value  not  always  exclusive  measure,  572. 

rul-e  in  New  York,  579. 

conversion  by  agent,  rule  of  damages,  588. 

measure  of  damages  for  conversion  of  stocks,  606,  613,  623  n. 

mitigation  of  damages  by  restoring  property  converted,  625. 

against  lessee  of  sheep,  for  conversion  of  wool,  627. 

damages  for  expenses  of  search  for  property  converted,  630. 

actual  damages  in,  634. 

nominal  damages  in,  634. 

what  amounts  to  conversion,  634. 

in  action  by  pawn-broker  for  conversion  of  pledge,  640  n. 

when  full  value  the  measure,  640. 

for  wrongful  seizure  under  judicial  process,  640. 

for  mining  coal  on  plaintiff's  land  by  mistake,  679. 
TRUSTEE,  infringer  of  patent  regarded  as  trustee  for  patentee,  718. 

UNAUTHORIZED  CONTRACTS,  damages  for  breach  of  implied  war- 
ranty of  authority,  384. 

damages  against  factor  for  unauthorized  sale,  402. 
UNAUTHORIZED  SALES,  measure  of  damages  for,  generally,  613. 

when  made  by  agent  to  sell,  402. 
UNCONSCIONABLE  CONTRACTS,  allowance  of  what  is  fairly  due,  511. 
USE,  value  of,  recoverable  in  replevin,  650. 

of  freehold,  damages  for  injuries  to,  662. 

of  vessel,  loss  of,  in  collision  cases,  778,  793  n. 
USURY,  what  contract  is  not  usurious,  payment  to  avoid  penalty,  511. 

VALUATION  of  partial  loss,  in  marine  insurance,  421. 

of  land  taken  for  municipal  purposes,  667. 
VALUE,  market  value  of  goods,  how  determined,  104. 

in  actions  against  carriers,  104. 

at  place  of  delivery,  when  measure  of  damages  in  actions  against 
carriers,  99. 

of  goods  sold  by  factor  contrary  to  instructions,  402. 

stated  in  policy,  effect  of,  on  insurer's  liability,  421. 


GENERAL  INDEX.  853 

VALUE — continued. 

rule  as  to,  in  actions  on  notes  payable  in  goods,  481,  490  n. 

damages  for  fraudulent  representations  as  to,  549,  553. 

price  paid  as  evidence  of,  553. 

rule  of  higher  intermediate,  in  cases  of  conversion,  561,  623  n. 

meaning  of  the  term,  with  respect  to  replevin  suits,  587. 

at  time  of  conversion,  with  interest  to  trial,  the  measure  of  dam- 
ages for  conversion  of  stocks,  606. 

or  other  personal  property,  624. 

measure  in  trover  by  pawn-broker  for  conversion  of  pledge,  640. 

of  use,  as  well  as  of  property,  recoverable  in  replevin,  650. 

diminution  of,  not  measure  in   action  for  nuisance  to  real  estate, 
658,  662  n. 

of  land  taken  by  municipal  corporation,  667. 

of  coal  mined,  the  measure,  in  trespass  for  mining  it,  677. 

of  coal  in  place  ;  where  suit  is  in  trover,  679. 

increased  value,  when  not  measure  in  replevin,  685  n. 

of  continuance  of  life,  in  action  for  causing  death,  796,  803. 
VENDEE  of  goods,  failure  of,  to  complete  purchase,  230. 

of  land,  measure  of  damages  against,  34. 

forbearance  of,  at  vendor's  request,  316. 

damages  to,  in  case  of  non-delivery  of  goods  purchased,  316. 

waiver  of  delay  in  delivery,  by  receiving  goods,  325. 

forfeiture  of  purchase  money  for  failure  to  pay  installment,  450. 
VENDOR  of  land,  measure  of  damages  against,  293. 

where  title  wholly  fails,  3,  4. 

damages  for  refusing  to  perform,  1,  40. 

liability  for  waste  pending  contract  to  sell,  40. 

damages  of,  against  vendee  refusing  to  accept  goods,  230. 

effect  of  knowledge  of  vendee's  intent  to  resell,  302,  309. 

damages  against,  for  non-delivery  of  goods,  316. 

knowledge  of  vendee's  intended  use  of  chattel  purchased,  545, 
546  n. 
VERDICT,  how  arrived  at  in  action  for  contaminating  well,  700. 

not  set  aside  for  admission  of  evidence,  under  proper  limitation,  ot 

contributing  cause  of  accident,  703. 
how  arrived  at  in  action  for  slander,  738  n. 
VINDICTIVE  DAMAGES.     See  Exemplary  Damages. 
VIOLATION  of  trade-marks,  damages  for,  710. 
of  patents,  damages  for,  718. 

WAGES,  damages  beyond,  after  wrongful  discharge,  407. 

amount  due  at  time  of  discharge,  the  measure,  415. 
unless  plaintiff  continuously  ready  to  render  service,  415. 


S>1<& 


854  GENERAL  INDEX. 

WAIVER  of  delay  in  delivery  of  goods  sold,  325. 
WARRANTY,  how  far  implied  on  sales,  considered,  45. 

of  title  to  personal  property,  45. 

consequential  damages  on,  269,  275  n. 

rule  in  Had  ley  v.  Baxendale  applied  to,  265. 

damages  in  actions  for  breach,  abatement  of  damages,  863. 

of  authority  to  make  contract,  implied,  damages  for  breach,  384. 

nominal  damages  for  breach,  449  n. 

costs  of  defending  action  for  breach,  526. 

special  damage  for  breach,  loss  of  bargain  for  resale  of  horse,  529, 
531  n. 

consequential  damages  for  breach  of  warranty  of  cabbage  seed, 
533,  539  n. 

extent  of  recovery  of  profits  for  breach  of,  540. 

sale  of  diseased  cattle,  consequential  damages,  545,  546. 

breach  of,  on  sale  of  corporate  stock,  546. 
WASTE,  by  vendor,  pending  contract  to  sell,  40,  41,  43  et  seq. 
WATER  COURSE,  damages  for  obstructing  flow  of,  692. 

for  contamination  of,  700. 
WEALTH  OF  DEFENDANT,  evidence  of,  in  action  for  breach  of  prom- 
ise, 760^ 
WIFE,  loss  of  seivice  of,  an  element  of  damages  in  action  for  personal  in-  nh  * 
jury  to,  by  negligence,  709  n. 

slander  of,  damages  for  loss  of  consortium  of  husband,  725,  737. 

for  imputation  of  un chastity,  causing  loss  of  hospitality,  737. 

ri»ht  of  action  for  causing  death  of  husband,  803. 
WORK  AND  LABOR,  contracts  for,  363  et  seq. 

assumpsit  for  part  performance,  recoupment,  375. 

contracts  for,  implied  obligation  to  permit  performance,  377. 

pleading  in  actions  for,  877. 

incomplete  performance,  stoppage  by  defendant,  377. 

liquidated  damages  for  failure  to  perform,  427. 
WRONGS,  assault,  741. 

conversion,  561. 

false  representations,  519. 

injuries  causing  death,  793. 

nuisances,  658. 

seduction,  757. 

slander,  720. 


WHOLE  NUMBER  OF  PAGES,   886. 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 
This  book  is  DUE  on  the  last  date  stamped  below. 


JUL  2  3  1979 
JUL  1 6  198A 


41585 


(' 


^SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  836  286    5 


1 


